Depleted Uranium

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	Whether, taking into account the priorities identified by the Royal Society and the United Nations Environment Programme, the issues surrounding spent depleted uranium ordnance are being addressed.

Lord Bach: My Lords, in support of the United Nations Environment Programme environmental survey of Iraq, and as requested by the Royal Society, Her Majesty's Government have released information on how much depleted uranium they have used in Iraq and will make available details of where that usage occurred. We will co-operate fully with an in-country field study by UNEP when the security situation allows.
	Her Majesty's Government agree with the Royal Society that soldiers exposed to high levels of DU should be tested, and have put measures in place to effect that.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his helpful reply. Bearing in mind the Answer of the noble Baroness, Lady Symons, yesterday about the health of children and the fact that we were doing what we could to help injured children in Iraq, do the Government have plans to join with UNEP or to undertake to fund sampling and monitoring of the water supply given that the effects of depleted uranium on health are unknown in the long term? It is likely that children's health will suffer. According to the Royal Society, the greatest concern is about depleted uranium washing into the water supply.

Lord Bach: My Lords, as the noble Baroness knows, there is no reliable scientific or medical evidence to link depleted uranium with the ill health of Gulf or Balkans veterans or people—including children—living in those regions. Studies by the Royal Society, the European Commission, the United Nations Environment Programme and the World Health Organisation support that view. The Government are determined to help as much as they can in the fields to which the noble Baroness refers.

Lord Vivian: My Lords, is the Minister aware that the depleted uranium tank round is known to penetrate all armour of modern tanks? Had such ammunition not been used in Iraq, the lives of British tank crews could have been put at risk, resulting in more casualties. In view of the general concern about depleted uranium tank ammunition and, as the Minister said, although the known health risks from DU are minimal, when will the proposed medical tests to which he referred be available for those personnel wishing to be checked for exposure to DU?

Lord Bach: My Lords, I very much agree with the noble Lord. DU munitions provide a unique anti-armour capability and will remain part of our arsenal for the foreseeable future because, frankly, we have a duty to provide our troops with the best available equipment with which to protect themselves and succeed in conflict. It cannot be said often enough that the use of DU is neither illegal—of course it is not—nor prohibited under any international agreements, including the Geneva Conventions. I cannot give the date by which the United Nations Environment Programme inquiries will be implemented but I know that it is working quickly on that, and we want it to do so.

The Countess of Mar: My Lords, does the Minister agree that although depleted uranium provides wonderful weaponry, we also have a duty, when there are problems, to take care of the people who are or may have been damaged by depleted uranium? The noble Baroness, Lady Miller, mentioned the children in Iraq. There was a very good Austrian report about seven or eight years ago about the damage being done to children—I raised it in the House—but it seems to have been totally ignored. Will the Minister look very seriously, with the United Nations and, if it comes to that, the World Health Organisation, at what might be happening to children? It is easy to stick our heads in the sand and pretend that things are not happening. However, time and again, the public who are complaining about illnesses are proved right. It may well be that in this case they will also be right.

Lord Bach: My Lords, of course we shall do as the noble Countess says. I must repeat that media reports of DU-induced cancers and birth defects in Iraq are not substantiated with credible scientific evidence. I am afraid that many other factors must be considered as possible causes. The World Health Organisation proposed a number of studies to the then Iraqi government in 2001 but received no response. We very much hope, as does the noble Countess, that it will be possible for the World Health Organisation to proceed now.

Lord Rea: My Lords, will the Government actively support such an independent survey to put at rest those allegations?

Lord Bach: My Lords, I certainly can confirm that.

Lord Redesdale: My Lords, considering the growing concern about the toxicity of depleted uranium, the fact that the long-term effects of that toxicity on civilian populations have so far not been properly examined and the fact that we have a duty to stop any civilian deaths as a result of any action that we have undertaken, can the Minister say how much money has been put aside for decontamination of any depleted uranium used by British forces in Iraq?

Lord Bach: My Lords, I am not in a position to give the noble Lord a sum. But we take our responsibilities seriously. Our responsibilities are really to civil power at present. We will have to behave reasonably, and we are determined to do so, to ensure that any possible consequences are lessened.
	The House probably knows that depleted uranium is 40 per cent less radioactive than naturally occurring uranium. We are all exposed to natural uranium every day through water, food and air without adverse effects on our health. DU is also widely used for a range of civilian applications. We must keep those very proper questions in context.

Firearms: National Licensing System

Lord Marlesford: asked Her Majesty's Government:
	Whether it is still their intention that the national register, required by Section 39 of the Firearms (Amendment) Act 1997, should be operational in the summer of 2004.

Lord Falconer of Thoroton: My Lords, as the noble Lord is aware, this has been taken forward as part of a national firearms licensing management system that interfaces to the police national computer. I understand from the Police Information Technology Organisation that the results of the tendering process are now being evaluated and the project is expected to be operational by 31st August 2004.

Lord Marlesford: My Lords, I am delighted that the Minister can confirm his earlier determination to do something after all this time. I do not particularly mind all the changes of name. I rather agree with Chairman Deng Xiaopeng that it does not matter what colour the cat is, provided that it catches the mice. The important question is whether the Minister agrees that, next summer, police anywhere in Britain should be able to access in real time the computer system to check whether someone has a firearm or has been refused one. Does he agree that the next stage will be to carry out licensing centrally, as is the case with motorcars and driving licences in Swansea, taking the burden off the police forces?

Lord Falconer of Thoroton: My Lords, I do not understand the reference to the change of name. My name has remained the same throughout the process. I agree that the intended outcome is a national licence management system, with one source providing information on who has applied for a licence, who has one, and who was refused one, and one centre for dealing with the application process. It is to be hoped that the system will be operational from 31st August next year.

Lord Mackie of Benshie: My Lords, will the national system do away with the inspection and licensing of guns in rural areas by a policeman who knows the people? It would be better if that system were not abandoned.

Lord Falconer of Thoroton: My Lords, the local system of enforcing who has a licence and who does not have one will be assisted by easy access to information on who has a licence and who has been refused one. But it does not obviate the need for a local means of enforcing the licensing system.

Lord Tanlaw: My Lords, is the Minister in a position to say now what percentage of gun crime is committed by legitimate holders of firearms or shotgun licences? Will he be in a position to answer that question when the register is up and running after 31st August 2004?

Lord Falconer of Thoroton: My Lords, I cannot give an answer now, and it would be quite difficult to give one even after the system is up and running. The system aims to identify who has a licence and who has been refused one. If I can give more information than I have provided today, I shall write to the noble Lord.

Lord Renton: My Lords, although every citizen of the United Kingdom is obliged to obey every word of the law, is the noble and learned Lord aware that many details of the law do not come to the notice of those who must obey them? What steps will the Government take to alert the people who must obey this provision?

Lord Falconer of Thoroton: My Lords, it is not about a change in the law; it is about giving effect to existing law. What is being said is that people must still apply for a licence, but the question is how the information is recorded. If there are administrative changes to the application process, no doubt a means of telling people about them will have to found. This does not involve a change in the law; it involves a change in the management of the process.

Lord Elton: My Lords, given that Parliament laid on the Home Office the responsibility for bringing the system into force in 1997, why will the instruction not be carried out until 2004?

Lord Falconer of Thoroton: My Lords, I acknowledge entirely the obligation in Section 39. On previous occasions in the House, my noble friend Lord Bassam and I have given detailed explanations of what happened and why it has not been brought into force before August 2004. The basic answer is that steps were taken to work up a proposal to bring the provisions into force, but then other priorities relating to the police national computer superseded them. Those were entirely legitimate priorities, such as linking to a DNA database. A scheme was worked up that, it was discovered, could not work. All those steps were legitimate attempts to deliver on the obligation imposed by Parliament. We now have a date on which the system will become operational.

Lord Roberts of Conwy: My Lords, can the noble and learned Lord give some idea of the total cost of the register to the Government and, more importantly, to the individual licence holder?

Lord Falconer of Thoroton: My Lords, I cannot give a precise figure at present because the tenders have not yet been accepted. But, subject to commerciality and confidence, I will notify the noble Lord of the figures. Applicants must already pay for a licence, and, so far as I am aware, the price will not increase.

The Lord Bishop of Hereford: My Lords, further to the question by the noble Lord, Lord Tanlaw, is it really the case that the Minister cannot tell us the percentage of those convicted of gun crime who were in lawful possession of a gun? Would it be reasonable to assume that practically none, if any, was in lawful possession of a gun? I should have thought that that information would be readily available.

Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Marlesford, is to be congratulated on pressing his amendment in 1997. One of the purposes of a national licensing management system, which is what he sought, was to provide precisely that sort of information. I can provide no information at this precise moment, but I shall ask if I can provide more information.

Lord Vinson: My Lords, would the noble and learned Lord agree that we are possibly tackling this problem from the wrong end? Can he give any indication of how many unlicensed guns will remain unlicensed when this system is in place?

Lord Falconer of Thoroton: My Lords, no, I do not know. It is to be hoped, as few as possible. That is what the amnesty which finished at the end of last month was trying to deal with.

Armed Forces Pension Scheme

Lord Vincent of Coleshill: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice president (unremunerated) of the Forces Pension Society.
	The Question was as follows:
	To ask Her Majesty's Government what action they propose to take to improve the Armed Forces pension scheme with respect to the death in service benefit paid to the spouses of those killed in action.

Lord Bach: My Lords, the Ministry of Defence's two reviews of the Armed Forces pension and compensation schemes have included consideration of the level of death in service benefits. We expect to finalise proposals for the new Armed Forces pension and compensation scheme and to make a public announcement of the key proposals before the summer Recess. The new schemes will not be introduced before 2005–06. We have no plans to enhance the current death in service benefit ahead of implementing the findings of the reviews.

Lord Vincent of Coleshill: My Lords, I thank the Minister for his reply. Given that members of the Armed Forces accept a unique commitment by putting their lives at risk whenever and wherever they are sent on operational duty—as was demonstrated this year with 35 of them dying in operations associated with Iraq—does not the Minister agree that the death in service benefit paid in respect of those killed serving their country in this exceptional way, which is currently set at no more than twice their annual salary, should at least be as good as the related benefits paid, for example, to firemen, Members of Parliament and policemen, where the present rates vary between three and five times their salaries?

Lord Bach: My Lords, I agree with what the noble and gallant Lord said about the bravery, courage and dedication to duty shown by all our Armed Forces. We think particularly of those who died in the service of this country. As far as our obligations are concerned, of course we all owe them much more than, frankly, we can ever pay. But I have to say that while the death in service benefit for the Armed Forces is, as the noble and gallant Lord said, below that of, for example, the police and fire service schemes, it does need to be seen in the context of the other benefits available under our compensation arrangements.
	For example, although the police and fire service pension schemes pay a short-term widow's pension equal to the officer's pensionable pay for a period of three months, the Armed Forces scheme pays a short-term pension for six months. That means that the serviceman's widow sees no reduction in the household income for a further three months. The police and fire services long-term widow's pension is comparable to an Armed Forces widow's pension. However, the Armed Forces widow's pension is paid for life and, of course, this is increased annually with inflation, unlike the police and fire schemes which cease on remarriage or cohabitation. A pension for life is, of course, extremely valuable for young widows with children.
	A serviceman's widow receives a tax-free war widow's pension under the War Pension Scheme. However, this ceases, as the noble and gallant Lord will know, on remarriage or cohabitation. The widow may be also eligible for rent allowance under the War Pension Scheme. Children's pensions are comparable but there is an additional tax-free children's allowance payable under the War Pension Scheme. I am sorry that I have taken so long to answer the noble and gallant Lord's question, but he raises a very important point.

Lord Vivian: My Lords, prior to the recent conflict in Iraq, the MoD introduced emergency affected pension rights for single partners of servicemen and women who are killed in combat. Will the Minister explain why, at the same time, the Ministry of Defence neglected to raise death in service lump sum benefits commensurate with modern standard practice, whether single or married?

Lord Bach: My Lords, the reason that we did not raise that benefit at this particular time is because we think it best to wait until the new scheme, which it is hoped will be announced before the Recess, comes into effect. Once one starts tampering with one side of the benefits that make up this compensation, one has to start tampering with the others. Although it is hard, we consider it best to stay where we are until we can produce a comprehensive new scheme. That is the reason why we behaved in the way that we have.

Lord Craig of Radley: My Lords, can the Minister give the House an indication as to whether this long and protracted MoD pension review is required to be cost neutral, bearing in mind, for example, that when the death in service benefit for Members of Parliament was raised in July 2001 from three to four times basic salary, it was stated that,
	"The cost of this was to be met by the Exchequer"?
	In other words, can the Minister confirm that where it is necessary to follow modern practice on pensions there is no bar on the additional cost which that would require to meet?

Lord Bach: My Lords, I am afraid that I cannot confirm that for the noble and gallant Lord. Our intention is that the changes in this particular field will be cost neutral.

Lord Redesdale: My Lords, can the Minister say when the Government will actually start the reviewing process for unmarried partners? Obviously, the issue affects quite a few service personnel. Will it take place in the next year or so?

Lord Bach: My Lords, the noble Lord will know that on 20th March this year the Minister for Veterans, Dr Lewis Moonie, announced that ex gratia awards, equivalent to benefits paid to a surviving spouse under the Armed Forces pension scheme, may be awarded to their unmarried partner where the service person's death is as a result of conflict and the relationship is deemed to have been substantial.

Lord Elton: My Lords, can the Minister tell us how he will explain to recipients of the new pension arrangements which he has described for the Armed Forces the reasons for treating them less favourably than Members of the House of Commons?

Lord Bach: My Lords, I have not described what these new arrangements will be. I am not in a position to do so. Even if I were, I would not until a proper announcement had been made. But when these announcements are made, I have no doubt that we shall answer the question raised by the noble Lord.

Baroness Strange: My Lords, is the Minister aware that as president of the War Widows Association of Great Britain I, and all my ladies, agree totally with all that my noble and gallant friend Lord Vincent said and, also, with all the things that he did not have time to say? Is he also aware that George Washington once said that the strength of a country's armed forces was directly relevant to the way in which it treated its service pensioners and its war widows?

Lord Bach: My Lords, I am well aware that the noble Baroness, with her experience and close interest in this field, will have much common feeling with the noble and gallant Lord who asked this Question. It is important to point out that our view is that the overall scheme—not just the death in service benefit but the other items that I have attempted to set out in short—represents an above average way of dealing with this problem compared to other public services.

Lord Acton: My Lords, can my noble friend say, in respect of the overall scheme to which he has referred—

Lord Davies of Coity: My Lords, I am wondering—

Baroness Symons of Vernham Dean: My Lords, there is plenty of time. Perhaps we should hear first from the noble Lord, Lord Acton.

Lord Acton: My Lords, would my noble friend explain, in relation to the overall scheme which he described to the noble and gallant Lord, Lord Vincent, which family an actuary would say is better off? Would it be the family of a member of the Armed Forces, the family of a member of the police or the family of a member of the fire service? I could not understand it.

Lord Bach: My Lords, I could not say which family would say they were better off. I have said that the fact that the death in service benefit is less at the present time for widows in this field is countered, to a considerable extent, by the increase that there is in pensions and the tax position, too.

Lord Campbell of Croy: My Lords, will the review of the pension scheme take full account of deaths in action in peace-keeping and similar operations which are not necessarily regarded as war against an enemy?

Lord Bach: My Lords, I am happy that at last I can confirm a question put to me. Yes, I can confirm that. Indeed, members of the Armed Forces who lose their lives in training, let alone in peace-keeping operations, are eligible for the death in service benefit and the other compensations I have mentioned. It is a question of whether the death or the injury—the death in this case—is attributable to their service.

Lord Davies of Coity: My Lords, I am sure—

The Earl of Erroll: My Lords—

Baroness Symons of Vernham Dean: My Lords, we have heard only once from the Labour Benches. The noble Lord, Lord Davies, has been very patient. I suggest we hear from him and then hear from the Cross Benches.

Lord Davies of Coity: My Lords, I am sure that my noble friend is aware that, in industry generally, if an employer or one of his servants is neglectfully responsible for the death of another employee, considerable insurance payments are made in compensation. Can the Minister say whether any such approach is taken in respect of soldiers killed as a result of so-called friendly fire?

Lord Bach: My Lords, it is not appropriate to make a complete comparison between what may happen in industry and what may happen in the heat of battle.

The Earl of Erroll: My Lords, how can the Minister possibly say that the Armed Forces scheme is as generous as the parliamentary scheme? As he has admitted, the Armed Forces scheme is cost neutral whereas the costs of the parliamentary scheme fall on the Exchequer.

Lord Bach: My Lords, I do not think I said that it was as generous as the parliamentary scheme. I do not think I have commented on that one way or the other. I am saying that the present scheme is being altered and that the intention is to alter it for the better. We shall have to see how that turns out.

Irish Parliament: Northern Ireland Representation

Lord Glentoran: asked Her Majesty's Government:
	What discussions they have had with the Government of the Republic of Ireland concerning proposals to allow elected representatives from Northern Ireland to participate in debates in the Irish parliament.

Lord McIntosh of Haringey: My Lords, an all-party Oireachtas committee made recommendations on this issue last year which are currently the subject of consultation within the Oireachtas. There have been no discussions between Her Majesty's Government and the Irish Government on this issue.

Lord Glentoran: My Lords, I thank the Minister for his response. In so doing—with no offence intended to the Minister—I regret that the noble Baroness, Lady Farrington, is not in her place today. I understand that she is ill in hospital.
	The Minister will know that the Taoiseach, Mr Ahern, intends to take forward the Sinn Fein request that Northern Ireland's politicians should be allowed to participate and vote in certain debates in the Dublin parliament. Does the Minister agree that this rather offensive proposal is intended to undermine the reality of British sovereignty in Northern Ireland? Does he further agree that such a proposal is in complete conflict with the Belfast agreement, central elements of which are the principle of consent and the acceptance by all sides of the legitimacy of Northern Ireland within the United Kingdom? As such, will Her Majesty's Government undertake to make strenuous representations to the Irish Government that this would be an unwelcome move on their part?

Lord McIntosh of Haringey: My Lords, I am grateful for the noble Lord's remarks about my noble friend Lady Farrington. We all share his feelings. I have read the transcript of the debate in the Dail to which the noble Lord, Lord Glentoran, refers. Her Majesty's Government are not responsible for what the Taoiseach says in the Dail and are in no position to answer for him. However, as I understand it, what is proposed would be a voluntary arrangement. It could not and would not intrude on the territorial and constitutional integrity of Northern Ireland. If the Irish Government were to reach a conclusion together with all parties in the Oireachtas, we would expect them to consult us when they arrive at such a position. They have not done so.

Lord Laird: My Lords, does the Minister agree that the one commodity that is missing in Northern Ireland at the moment is trust? We are short of trust on every side. Does he agree that this kind of activity by the Dublin Government, on top of their changing of the Belfast agreement in the Dail on 19th November to allow them unilaterally to cut budgets for cross-border implementation bodies, is a very serious breach of trust? Does he further agree that if we wish to bring trust back into the equation in Northern Ireland, then the less talk we have of Dublin running an agenda which is contrary to the Belfast agreement the better?

Lord McIntosh of Haringey: My Lords, I can hardly disagree with the observation that we could do with much more trust in Northern Ireland. That is clearly the case. But we are talking about a proposition within the Oireachtas which is the result of an all-party committee on the constitution which reported last year. It is a matter for them how they respond to the report of the all-party committee. As I say, if they reach a conclusion on the matter we would expect them to consult us. In anticipation of that, I cannot comment on the other points made by the noble Lord, Lord Laird.

Lord Smith of Clifton: My Lords, we associate ourselves with the concerns expressed for the indisposition of the noble Baroness, Lady Farrington. I was reassured when the Minister said that this is a matter for the Dail. Does he agree that, in the meantime, one of the best steps forward would be to do everything possible to encourage the Ulster Unionists to participate in the British-Irish Inter-Parliamentary Body?

Lord McIntosh of Haringey: My Lords, the issue of participation in the inter-parliamentary body is separate from the Question on the Order Paper. I prefer not to comment on it.

Lord Lester of Herne Hill: My Lords, one of the items in the Good Friday agreement is the need for human rights legislation north and south of the border and east and west of the Irish Sea. We have kept our part of that bargain very well. In negotiations with the Irish Government, will representations be made to ensure that the human rights legislation promised in the Good Friday agreement will be enacted in Ireland so that there is equal protection in both islands?

Lord McIntosh of Haringey: My Lords, that question, too, is clearly wide of the Question on the Order Paper.

Lord Molyneaux of Killead: My Lords, would it not be a good idea—and prudent—to remind the Irish Government of the disastrous intervention of a previous Irish Government who wrecked the Sunningdale agreement and destroyed the possibility of stable devolution in Northern Ireland for all time?

Lord McIntosh of Haringey: My Lords, if and when we have a communication from the Irish Government on the issue the subject of the Question on the Order Paper, we will respond appropriately. I cannot speculate on what that response would be or on the wider issues raised by the noble Lord, Lord Molyneaux.

Lord Dubs: My Lords, does my noble friend agree that the concerns about this issue are much exaggerated? Can he confirm that, in the past, persons living in Northern Ireland—I can remember at least one instance—have been appointed as full members of the Senate in Dublin? There seemed to be no objections to that at the time.

Lord McIntosh of Haringey: My Lords, appointments to the Senate by the Taoiseach have indeed been made in the past. Indeed, there is a member from Northern Ireland in the Senate at the moment. That is why I referred to the committee of the Oireachtas and not simply to the Dail. It is true that this has happened for a number of years; it is true that an extension of the practice is the subject of a recommendation by the Committee on the Constitution chaired by Mr Brian Lenihan—the subject of the Question; and it is true, I believe, that the matter has not been the subject of very great controversy.

Primary School Tests and Targets

Baroness Ashton of Upholland: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Education and Skills. The Statement is as follows:
	"I have published a document today that sets out the Government's approach to primary education. Copies have been placed in the Library of the House. This is a document called Excellence and Enjoyment—a Strategy for Primary Schools. It outlines an approach which joins high standards through a varied, rich and exciting curriculum with high standards of excellence and achievement through testing, targeting and tables.
	"On testing, we support the testing regime that we have established. We believe that it ensures that teachers and parents can track the progress of every single child. It helps identify those pupils who need extra support as well as those who need to be stretched.
	"Targets show what we need to achieve, provide clear focus and provide an important means of measuring progress and improvement. Every organisation that wishes to succeed sets itself goals and targets and again we confirm that approach in our document.
	"Finally, on performance tables, we believe that it is important to maintain the regime of tables which gives information to parents in a way they can use to make choices about schools.
	"Following our conference of primary head teachers, we have taken a number of the sensible suggestions made by primary heads to modify the application of some of these principles. I refer to four points in particular.
	"First, in future the target setting process will begin with schools themselves at key stage 2 and local education authority targets will be set afterwards. Schools will set targets based on what they know about individual children's ability but also on high aspirations for the value they themselves as schools can add. We want schools to aim to add more value each year and to look at the performance of other schools in similar circumstances.
	"Secondly, I have listened to concerns about testing at key stage 1. I believe that robust assessment is a vital learning and teaching tool and that most teachers support that strongly. I do not accept that the sort of tests and tasks that children are set at key stage 1 are too stressful for children to do, but we shall look at the ways these targets and tests are used and we shall trial an approach in which tests and tasks underpin teacher assessment rather than being reported separately.
	"Thirdly, I have listened to concerns about the reporting of the achievement of children with special educational needs. We shall consult to establish precisely how and in what way we shall consider modification of our approach to deal with those needs.
	"Finally, we are prepared to consider ways in which schools' broader achievements than those purely measured through the tests can be better reflected in performance tables.
	"As well as outlining these changes which I have indicated, the document I published today also sets out how we shall support schools in taking more control of their own improvement and providing children with a broad and rich curriculum".
	My Lords, I commend the Statement to the House.

Baroness Seccombe: My Lords, I am grateful to the noble Baroness for giving us the opportunity to discuss the points raised by the Secretary of State for Education in another place. However, we have to draw attention to the fact that this Government, once again, have treated Parliament with contempt in that they continue to make important announcements of this nature through the media and at conferences rather than through Statements to both Houses in the conventional and appropriate manner. It was only pressure and a PNQ in another place which led them to tell Parliament anything.
	Today the Secretary of State, Charles Clarke, in a speech at the Institution of Civil Engineers, launched Excellence and Enjoyment—a Strategy for Primary Schools and claimed that it was the most significant reorganisation of primary schools in 10 years. Is it not in fact rather an acknowledgement of the continued failure of the Government to improve standards in primary schools, and of the increased stress that their addiction to tests, targets and tables has placed upon teachers and young children?
	Does the noble Baroness agree that despite the Prime Minister's assertion to have "plainly succeeded pretty much with education", the Secretary of State's department is in considerable difficulty which is entirely of its own making?
	This new strategy does nothing to deal with the key issues that affect schools at the moment. It has no impact on the school funding crisis that we discussed only last week. It does nothing to comfort the head teachers faced with yo-yoing budget cuts and the loss of thousands of teachers and assistants through redundancy because of those cuts.
	The Secretary of State is keeping targets, tables and tests. Can the Minister explain what is the difference between yesterday's 3Ts and today's? Last month the Secretary of State told the conference of the NASUWT,
	"The tests are here to stay, and so are the targets".
	Today the Secretary of State says that he is radically reducing the testing and abandoning his own targets. Is he not simply redefining the targets and the tests to suit his own purposes? We on these Benches have long advocated the complete abolition of the national target setting which has caused so many problems in schools. We cannot support such half measures as we are seeing today.
	If the Secretary of State is genuinely interested in disposing of these national targets, will he go so far as to abandon all national targets—for secondary schools, for colleges, and the 50 per cent university admission targets—that have had such an invidious effect on our education system? Will he allow schools the independence to set their own targets to raise standards and not impose the destructive regime of national target setting?
	Today's announcement is merely a convenient way for the Government to shift the burden for their own failures. The real problems for schools lie in the Secretary of State's infatuation with a regime of central control and command that instructs teachers on a daily basis, via reams of extra and unnecessary paperwork, how to reach the Government's national targets.
	Is it not shocking that a Government that came to power in 1997 with, as one of their key objectives, "Education, Education, Education" should six years later have so completely lost the confidence of head teachers, teachers and parents and become so fixated with statistics and targets as to have lost sight of the primary purpose—teaching our children?

Baroness Sharp of Guildford: My Lords, I, too, thank the Minister for repeating the Statement made in another place. I join the noble Baroness, Lady Seccombe, in regretting the fact that the Government were not of their own accord going to make a Statement to Parliament and that it had, to some extent, to be squeezed out of them.
	While saying all that I welcome the content of the Statement. As the Minister will know, as I have put repeated questions to her, for a very long time we on these Benches have suggested that the testing regime was not totally necessary and that in particular the standard aptitude tests (SATs) for seven year-olds put unnecessary pressure on them. Tests have been used as a diagnostic tool and teachers will need to continue using them. Any good teacher would use them. However, the imposition of the national tests was totally unnecessary and, as I say, places undue pressure on children. We are absolutely delighted that the Government have now accepted the wisdom of the argument that we have put forward for some time and are thinking of modifying the system although it is not clear to me exactly what modifications they propose. I should like, if possible, to have a little more detail from the Minister on that issue.
	In relation to the tests for 11 year-olds, my understanding is that the tests will continue but that here again the targets will be set by individual schools. We welcome that. It is clear that in some schools, where reaching the targets is extremely difficult, not only pupils but also teachers are put under extreme pressure. We welcome enormously the fact that the Government recognise the need to differentiate between schools and to recognise the professionalism of teachers. Head teachers and the teachers of the classes concerned have a right to set their own targets. Of course, one wants the targets to progress from year to year. One wants schools to achieve progress. However, there comes a time when a ceiling might be reached. We have recognised that.
	We should also recognise that in the one area to date in which the targets are set by the individual schools—the science curriculum—schools have achieved extremely highly. That indicates that leaving professionals to make up their own minds on targets achieves what we want to achieve, which is the raising of standards generally.
	We welcome the step very much. Will the Minister tell us a little more about the performance tables and the whole question of taking other factors into account? As she knows very well, the crude performance tables that have been published are very misleading and can result in some schools in particular areas being dubbed "sink schools" quite unnecessarily. Will the performance indicators take into account the wider aspects of the school? Are we continuing with value added tables, or has it been decided to stop them?
	Finally, I welcome the move in relation to special educational needs. Schools with disproportionate numbers of students with special educational needs have felt a great deal of pressure and despair about ever meeting the targets that Ministers have set until now. The news is extremely good, but the Minister could tell us a little more about what is planned in relation to such children.

Baroness Ashton of Upholland: My Lords, I begin by saying to the noble Baroness, Lady Seccombe, that we produced a written Statement in another place at 9.30 this morning, in accordance with what I understand is parliamentary procedure. It is always a delight for me to discuss the issues in this House, so I am personally very grateful for the opportunity, however it has been given.
	I do not accept that we are in any sense building on an education department in difficulty. We have had robust debates in the House about the issues of school funding. I believe that I have been as clear as possible, and that my right honourable friend has done all that he can to work closely with local authorities to make sure that we resolve the difficulties. I do not underestimate those difficulties, but believe that we have found some way through them.
	We are not abandoning anything. In our conferences, we have had the opportunity to talk with more than 2,000 primary head teachers, which I am sure that noble Lords would admire and applaud. We discussed with them what more we can do in the context of recognising the value of targets, testing and tables—the three Ts, as they have become known today. In that process, we have not lost any confidence with head teachers. Indeed, I believe that they have enjoyed the opportunity and have built on it in terms of their relationship with us.
	We are looking to enhance the structures that we have. It is the job of government, particularly in education, which is our priority, to make sure that we build on what we have learned and make the system better, year on year. I do not accept the remarks of the noble Baroness, Lady Seccombe, about bureaucracy. I accept that we have work to do on what we have already started, in terms of the unit that we have set up to work directly with head teachers to ensure that all the documentation that schools receive is relevant. On our timely Education Act, noble Lords said that some of the documentation was absolutely critical for schools to receive. I understand their points, but we need to establish an important balance.
	I want to deal specifically with the points made by the noble Baroness, Lady Sharp, but address those of the noble Baroness, Lady Seccombe, about the detail as well. I shall briefly say what we are trying to do in the key areas. For key stage 2—for 11 year-olds—we have said that in future we want schools to set their targets. Noble Lords will know that, for a long time, schools have been working with us on that, but have also developed their own system to make sure that they work with their own children, to assess the children's development and growth and therefore where they will have got to by 11. We want that to be stretching; we make no bones about that. We want targets to be designed by the school to get the very best that they can for their pupils. That will then form the basis on which the local education authority targets will be developed.
	For key stage 1, noble Lords who have had the experience of watching seven year-olds undertake the tests will know that the way in which schools run them is extremely competent. Part of the test can be taken at any time between the start of the January term and just before the end of the summer term. During the whole of May, two or three of the tests take place. They are designed in a way that fits with what children learn on a general day-to-day basis. That has worked extremely well for the children. I commend our teachers, who have ensured that.
	Anyone who has looked at how we assess a test will see the teacher assessment and the test. We recognise that we need to develop that in a more rounded way, so that the teachers build the tests into an overall assessment. That is what we want to trial, to see whether that approach gives better information to parents and a more rounded view of pupils, both of which I believe that noble Lords will accept.
	In terms of our tables—performance tables, as we would call them—we are introducing for the first time value added tables at primary level. That is very important. We are consulting more widely. As information gets more sophisticated, and as we are able to do more with the information that we receive, it is important that we use it to develop the point made by the noble Baroness, Lady Sharp, about recognising the achievement of schools. We would all support that, and we want to do it.
	In the document, we floated the possibilities of, for example, looking at the headline judgment that Ofsted made. A very important part of what Ofsted does is to look at how schools are developing across the curriculum. Perhaps an alternative or additional task would be to look at comparisons between schools in very similar circumstances. That is the obvious comparison to make, and we see disparity in the achievements of schools with very similar pupil populations. That helps us to support those schools, and it also gives important information. We are open to other possibilities. It is the beginning of getting performance tables to reflect further the wider way in which schools support children, which we want to do.
	Crucially, we are trying to ensure that the idea of special educational needs is not about excluding children from celebrating their achievement. We must get better at celebrating all children's achievement, which requires us to look very carefully at how we measure the achievement of every child and celebrate it in the most appropriate way. We must also celebrate inclusion in our schools, with which I am sure that all noble Lords would agree.

Lord Quirk: My Lords, I am among those who have welcomed in recent years the focus on literacy and numeracy in primary schools but, like others, I have been concerned that this concentration has or may have diverted attention from some other aspects of education, notably music. Am I right in inferring from the Statement that, as a result of today's announcement, schools would be able to devote more time and resources to restoring music to the rightful place that it had in primary schools, noting the extent to which music is a language to which children who are not good at maths or English may well respond and become less disaffected in their schooling as a consequence?

Baroness Ashton of Upholland: My Lords, I was listening to Evelyn Glennie on the radio this morning talking about the value of music as a tool with which children could reach parts of the curriculum, whether science, history, geography or the arts. I endorse that. I have said in the House many times that there is one curriculum in primary schools, and that it is enriched. I hope that the document that noble Lords will have a chance to read during the course of today and tomorrow will demonstrate our commitment to ensuring that we develop that enriched curriculum, and that we make sure that music, PE and sport, geography, history, modern foreign languages and all other subjects are part of that curriculum.
	I am sure that the noble Lord, Lord Quirk, would agree that we also want to enhance the opportunities to learn literacy and numeracy skills through other curriculum subjects. It is quite possible to write about football or a piece of music, or to use some of the work of schools, whether through an allotment or geography trips, to make mathematical calculations and so on. We want to develop breadth and depth, which I am sure will be welcomed.

The Earl of Listowel: My Lords, listening to young carers this morning talking of their experience in school brought home to me the necessity for teachers to have space and time to think about their students. One boy in particular said that his headmaster always asked him how he was and how his father was doing, his father having mental health problems.
	My impression is that what the department is putting forward in the paper will enable teachers to be a little less stressed in what they are doing. The value-added tables might begin to identify the special quality of a caring school; one which is inclusive and thinks about children not just as products but about their needs and how they fit into their families. Am I right in that impression?

Baroness Ashton of Upholland: My Lords, I hope that is true within this document and also within other actions that we have taken. The noble Earl rightly spoke of the value of teachers in being able to talk to pupils. Some of the work we have done in developing the workforce of the future relates to recognising the role of teachers and other adults in schools who can perform some of the pastoral work. For example, we have provided the opportunity for someone to develop the role of being co-ordinator of that work. Pastoral work in schools is critical. However, as regards this document and the wider issues we have discussed, I agree with the noble Earl.

Lord Roberts of Conwy: My Lords, I listened carefully to what the Minister said about the modification of the testing procedures. I am bound to say that it sounded as though the tests were becoming more rather than less elaborate. They are therefore somewhat more complex and of less value in enabling comparisons to be made. Can she give me reassurance on that basic point?

Baroness Ashton of Upholland: My Lords, I am sorry if I gave the noble Lord that impression. It was not what I intended. I was describing the position around key stage 1. There is already quite a lot of flexibility in the delivery of the tests as regards whether the teacher would like to take them with the whole class or with particular groups. We are looking at that approach to see whether it can be developed.
	We do not want to make the tests more complex, but head teachers have raised, for instance, the disparity in ages between children. Some children take the tests when they are six and others at age seven. We are looking to see whether within the flexibility one needs to be addressing the age, development and so forth of the child. We want to look at how to deliver the tests but not to make them more complex.

Lord Northbourne: My Lords, will the Minister agree that outcomes for children in tests, particularly key stage 1, must greatly depend on their experience in the first five years of their life in the family and in pre- and nursery school? How do the Government propose to avoid some children being traumatised because they do badly in tests in the first key stages because they have not had the same start in life as others?

Baroness Ashton of Upholland: My Lords, that must be a queue from the noble Lord, Lord Northbourne, for me to talk at length about Sure Start. I shall not do so on this occasion, but point out that the development of early years' education is an important part of the Government's work. Noble Lords who have had the privilege of looking at the EPPE research will know that we can conclusively demonstrate the value of that early start in terms of breaking them out of the cycles of poverty, if they are disadvantaged and also poor, and ensuring that they have a good, sure start in life.
	There is no desire on the part of the Government, and I am sure no noble Lord, to see trauma as going alongside key stage 1 and the testing. The purpose behind this is for us to be able to see what more we need to do to support our children. That has to be the ultimate objective and why it is important to have that. It is why we know that the schools which were doing badly a few years ago are now the average school. We have been able to move upwards and onwards with the ability of our children to learn and develop and to avoid, as is now the case, 7 million adults who do not have the literacy and numeracy skills of the average 11 year-old.

Baroness Maddock: My Lords, I listened with interest to the Minister when she told us that a Statement was made in another place at 9.30 this morning. Given that I, too, heard Evelyn Glennie on the radio, I know that the Minister of State for Education was on Radio 4 before 9.30 this morning telling us precisely what the noble Baroness told us in the Statement. Is it therefore the case that Parliament was not put first?

Baroness Ashton of Upholland: My Lords, I am clear that we put a written Statement before another place this morning at 9.30, which is parliamentary procedure. I do not believe that the statements that were made and the discussions that took place this morning in any way detracted from that. Indeed, the conversations and debates around the primary strategy have been taking place in campuses all over the country with primary head teachers and on local, national and regional radio and television stations for some time.

Baroness O'Neill of Bengarve: My Lords, I, too, welcome the Statement that the Minister has read, particularly the emphasis on reducing the number of tests. However, I want to ask the Minister about the thought that the tests are significant for parents. The tables of test results are only comparative information. Parents face what is relevant only in their own area and the tables can tell them only what is measured as better or worse by them. Parents could obtain far better information, which is already in the public domain, in the form of Ofsted reports. Those are narrative and well-informed reports. They may not be as good as they could be, but they still give a well-rounded impression of schools.
	Cannot we get away from the simplicities and distortions of ranking schools in a linear way—better and worse? Will we not be stuck with that if we simply go for more complex tables, including value-added tables? Parents need rounded information rather than comparative judgments.

Baroness Ashton of Upholland: My Lords, I agree with the noble Baroness, Lady O'Neill, and that is precisely what we state within the document that we are looking to achieve. Hence, we shall say whether alongside the information in tables we should add the headline information for Ofsted or do a comparator with other schools in similar circumstances.
	Value-added tables move us in the right direction. It is not our intention to make them more complicated; it is our intention to give better information. However, we must also always keep in mind that for many parents the ability to delve in and find the right kind of information about schools is not easily done. Therefore, it is critical that we give parents more information. It may be too simplistic at present, but it will continually improve in terms of being rounded. The Government have always made it clear that in addition to looking at the tables they should look at the Ofsted reports.

Baroness Carnegy of Lour: My Lords, plans have changed in primary schools during the past 10 years. Following on from the question asked by the noble Baroness, Lady O'Neill, is there any real reason why the Government should not trust primary school teachers to teach children and assess in their own way how they are progressing? Cannot the comparison between schools, which parents need, be based on what the inspectorate says and not on the result of structures within the schools, as proposed by the Government?

Baroness Ashton of Upholland: My Lords, in making that point, perhaps the noble Baroness, Lady Carnegy, does not recognise the value of literacy and numeracy strategies as they have been seen by teachers in primary schools. I believe that most primary school teachers would say that those strategies have been an extremely useful tool that they have modified—and that is appropriate—to fit their children and circumstances. They have provided them with the core need to ensure that children achieve to the right level.
	Within the document, we propose to try to support teachers in that way across the curriculum. We want to give them more support not in terms of the specifics of the teaching but in terms of the way in which lessons are taught across geography, history and other subjects. That is the way the Government want to take this forward.
	We trust teachers. We trust them to modify, use and develop the ways in which they teach, but it is our responsibility to obtain the highest possible standards for all our children if they are to achieve in later life.

Communications Bill

Baroness Blackstone: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]

Lord Avebury: moved Amendment No. 105:
	Before Clause 91, insert the following new clause?
	"INVESTIGATION OF CONTRAVENTION OF CONDITION
	(1) Where OFCOM determine that there are reasonable grounds for believing that a person may be contravening, or may have contravened, a condition set under section 42, they may undertake an investigation.
	(2) Where OFCOM decide to undertake an investigation under subsection (1), they shall give the person concerned a notice in writing which?
	(a) indicates the reasons for the investigation being conducted by OFCOM;
	(b) specifies in sufficient detail the condition and alleged contravention in respect of which the investigation is being undertaken; and
	(c) specifies the period during which the person has an opportunity to make representation about the matter.
	(3) Subject to section 95(3), the period specified under subsection (2)(c) must be a period of at least one month beginning with the day on which the notice is given.?

Lord Avebury: This group of amendments seeks to implement correctly Articles 10.2 and 10.3 of the authorisations directive which require a national regulatory authority—in our case, Ofcom—to give a company a month to state its views or to remedy breaches where it finds—I stress the word "finds"—that the company,
	"does not comply with one or more of the conditions of the general authorisation or the rights of use".
	We do that by providing for Ofcom to carry out an investigation during which the undertaking has the right to make representations and present its case before Ofcom initiates the enforcement process.
	Under Clause 91 Ofcom is able to initiate enforcement action on the basis of "reasonable grounds for believing" that a telecoms provider is contravening the conditions. If it is to avoid a possible fine, the provider will have to take remedial action that may include paying a person compensation for loss or damage, at the same time as it makes representations to Ofcom to rebut the allegations. We believe that the approach used in Clause 91(1), particularly when combined with Clauses 92(2)(b) and 93(2)(b), represents an incorrect and unfair way of implementing Articles 10.2 and 10.3 of the authorisations directive.
	Article 10.2 requires an NRA to give an undertaking a month to state its views or to remedy breaches when it finds the undertaking to be in breach. By contrast, Clause 91(1) enables Ofcom to do that where it has "reasonable grounds for believing" that the person is in breach. The real significance of the provision appears when Clauses 92(2)(b) and 93(2)(b) are contrasted with Article 10.3 of the directive. That article enables the NRA to take enforcement action and/or to impose financial penalties if the undertaking does not remedy the breaches within the period referred to in Article 10.2; that is to say, the period of one month from the notification of the finding of the breach.
	By contrast, Clauses 92(2)(b) and 93(2)(b) respectively enable Ofcom to serve an enforcement notification and to impose a penalty if the notified provider has not taken the necessary steps to remedy the breach during the period allowed under Clause 91; for example, the period of one month from the notification of there being "reasonable grounds for believing" that the provider is in breach. That is plainly not what the directive requires or allows and the Bill should be amended to ensure that enforcement action can be taken and/or a penalty be imposed only where the provider has failed to remedy the breach within the period of a month after notification of a finding that he is in breach.
	Amendments Nos. 105, 106 and 107 seek to do that by providing for an investigation to be undertaken by Ofcom before it initiates the enforcement process, although allowance is made for urgent cases under Clause 95. The new clause in Amendment No. 105 starts the process by giving Ofcom the power to undertake an investigation where it has "reasonable grounds for believing" that a condition set under Clause 42 has been contravened.
	Amendment No. 106 assumes that the investigation has been conducted, which allows Ofcom to conclude that a person has contravened, or is contravening, a condition set under Clause 42, and the one month's notice is given on a finding rather than on "reasonable grounds for believing". Of course we accept that there may be urgent cases where something needs to be done immediately, and allowance is made for that by the reference across to Clause 95.
	We believe that it is in any event wrong in principle for an undertaking to be obliged effectively to take remedial action, including paying compensation, or risk a substantial financial penalty during the period given for making representations in response to "reasonable grounds for believing". It is illogical that a person should have to pay compensation and in effect admit guilt at the same time as he is disputing the allegation of a breach with the regulator. Indeed, this provision could create a charter for the making of spurious allegations of breach.
	Amendments Nos. 108 to 118 set out to establish in a similar way a proper three-stage process as in the Competition Act, leading up to the imposition of fines on communication providers for breaches of the general and other conditions of entitlement. Here again, if Ofcom believes that the provider is committing a breach, the proper course of action is, first, to investigate whether that is the case, secondly, to make a decision as a result of that investigation and, thirdly, to take enforcement action including, where appropriate, the imposition of a fine.
	Your Lordships can see that we are not wedded to any particular wording, but in these two sets of amendments we are trying to be as flexible as possible. We would like the Government to concede that as it stands the Bill omits a vital stage that is implicit in the directive and that Ofcom cannot be said to find that an undertaking does not comply with a condition unless there is a process by which the undertaking has a proper opportunity to rebut the allegation before a determination is made. If we and the Government can agree on that principle, we can discuss with them which of the methods that we suggest would best implement that principle or, as occasionally happens, the Government could come up with a third way of achieving that which would be better than either of the ones that we propose. I beg to move.

Baroness Buscombe: I shall speak to Amendments Nos. 105, 106 and 107 to which my noble friend Lady Wilcox and I have added our names. I shall also speak in support of the remaining amendments in this group. Clauses 91 to 101 of the Bill deal with the enforcement of conditions imposed by Ofcom under Clause 42 of the Bill. Under Clause 91, if Ofcom determines that there are reasonable grounds for believing that there has been a contravention of such a condition, Ofcom can give the person contravening the condition a notification. That notification must specify a period during which the person in contravention must make representations, comply with any conditions of which it is alleged he remains in contravention and remedy the consequences of the alleged contravention. Under Clause 92, if the person in contravention has failed to take all the steps which Ofcom considers appropriate for complying with the condition and remedying the consequences of the alleged contravention, Ofcom can serve an enforcement notification. This imposes a duty on the person in contravention to comply with the enforcement notification.
	It is important to note that Ofcom can serve a notification under Clause 91 where there are only reasonable grounds for believing that a person is contravening or has contravened a condition. In contrast, Ofcom can give an enforcement notification only if it is satisfied that there has been a contravention. That means that a much higher standard of proof is required under Clause 92.
	Under Clauses 92 and 93 Ofcom can impose a penalty not exceeding 10 per cent of the turnover of the business carried on by the person alleged to be in contravention if Ofcom has given a notification under Clause 91 and the person alleged to be in contravention has not taken the appropriate steps to comply with the condition that he is alleged to have breached and remedying the consequences of the alleged contraventions.
	The oddity of these provisions is that a person alleged to be in contravention of one of the conditions must take the appropriate steps to comply with the condition that it is alleged he has contravened and must remedy the consequences of the alleged contravention even if he believes that he is entirely innocent; otherwise he runs the risk of a substantial financial penalty. He must take those steps when Ofcom merely has reasonable grounds for believing that there has been a contravention rather than being satisfied there has been a contravention. Such a person must take the appropriate steps before Ofcom is satisfied that there has been a contravention and serves an enforcement notification.
	That oddity is somewhat like the trial of the Knave of Hearts in Alice's Adventures in Wonderland where the Queen of Hearts decreed,
	"sentence first—verdict afterwards".
	We respectfully submit that the jurisprudence of the Queen of Hearts is inappropriate for the enforcement provisions in the Bill. I raised that point at Second Reading. We believe that it is important.

Lord McIntosh of Haringey: It is being asserted that this part of the Bill is in contravention of Article 10. The Government's view is that Clauses 91 to 98 implement Article 10 of the authorisation directive. I hope that I shall be able to demonstrate that.
	I shall deal first with the present situation and the defects in it. In some cases, under the present system, by the time that effective enforcement action could be taken, those affected by the breach could already have suffered substantial and possibly irreversible adverse consequences. There are limits on the way in which we can remedy that situation, and we do seek to remedy it. As the noble Lord, Lord Avebury, said, we must conform to the directive that, other than in exceptionally serious and urgent cases, at least a month must normally elapse between the time when Ofcom issues a contravention notice and the time when the issue is finally decided before any remedial action can be taken. In the Bill, we conform to the directive.
	We provide adequate safeguards for the subject of action. In particular, if the subject of notification takes appropriate remedial action within the period—whether or not they also make representations against the notification—Ofcom cannot impose any financial penalty or take any enforcement action against them. To that extent, we believe that the interpretation of the directive and of the clauses by the noble Lord, Lord Avebury, is incorrect. Of course, there is a full right of appeal on the merits.
	The amendments would not only put the clock back to the unsatisfactory situation that we have at the moment but would make things considerably worse. What would the amendments provide for? First, there would have to be a formal investigation, which would have to take place after—secondly—the giving of notice and—thirdly—the opportunity for representation. If, as a result of that investigation, it were found that there was a potential breach, there would have to be, fourthly, notice of intention to declare a breach; fifthly, the opportunity for further representations; and, sixthly, another formal notice. The opportunities for delay and failure to enforce the regulations in the directive are very great. During that period, it would be possible for a breach to continue and for those who are the subject of a breach to continue to suffer. If, in those circumstances, we have to take sides between the operators and the customers for their networks and services, we are on the side of the punters, of those who use the services.
	The noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe, seemed to think that taking action on the basis of reasonable belief was contrary to the directives. We disagree. Article 10 of the authorisation directive requires that, if the regulator "finds" that there is a breach, it shall notify the operator of that finding and give them a reasonable opportunity to state their views and remedy any breaches within a specific period. If they do not do so, the regulator is required to take measures to ensure compliance, including imposing financial penalties when appropriate.
	It would be in breach of a person's right to a fair hearing and against natural justice to make a conclusive determination before allowing a person to make representations. Given that the directive requires representations to be capable of being made and remedial action to be taken, following the finding, it is legitimate to interpret the reference to "find" in that context as meaning that there are reasonable grounds for believing that a contravention has occurred or is occurring.
	It would be wrong to impose remedies or penalties before reaching a final decision on the breach. If the intention of the directive was to require the regulator to take a conclusive decision on the breach before it could even begin enforcement action, it would be pointless for the directives to prescribe, as they do, a subsequent period for representations before remedies could be imposed. The urgency provisions in Clause 95 are not as open as noble Lords opposite seem to think. They are extremely limited.
	The provisions correctly implement article 10 of the authorisation directive. They properly respect the natural rights of those who may have to complain—the users of networks and services. The amendments would take us not only back to the present unsatisfactory situation but to further complexity, bureaucracy and delay.

Lord Avebury: We must disagree on the matter. I disagree particularly with the idea that Clause 95 does not give a satisfactory possibility of dealing with the cases that the noble Lord mentioned, in which substantial and possibly irreversible damage may be caused to one of the customers of an operator who is alleged to have breached the conditions. In Clause 95, there are adequate powers to take action, if there are,
	"serious economic or operational problems for persons . . . who are communications providers".
	That fits exactly the case that the Minister mentioned, in which the consequences to the victim of the breach may be so serious that he would be driven out of business.
	There is another fundamental disagreement between us on the ordinary use of the English language and the use of the word "finds". I use the word "finds" as meaning that one has carried out an investigation. I hope that most noble Lords would do the same. One does not find something to be true out of thin air. Evidence must be produced. In particular, if one is examining a case that involves substantial penalties, one must allow the person who is being accused the opportunity of rebutting the allegations.
	I shall not waste the Committee's time this afternoon. I see clearly that we shall have to return to the matter on Report. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 91 [Notification of contravention of condition]:
	[Amendments Nos. 106 to 116 not moved.]

Lord McNally: moved Amendment No. 117:
	Page 88, line 27, leave out "the most" and insert "a more"
	On Question, amendment agreed to.
	Clause 91, as amended, agreed to.
	[Amendment No. 118 not moved.]
	Clauses 92 to 100 agreed to.
	Clause 101 [Civil liability for breach of conditions or enforcement notification]:

Lord Avebury: moved Amendment No. 119:
	Page 97, line 1, leave out paragraph (a).

Lord Avebury: Under the Telecommunications Act 1984, third parties can sue licence holders, once Oftel has determined that there has been a licence breach, for any damages that have flowed from the breach. Clause 101 will allow any third party to sue a communications provider, if they believe that an operating condition is being breached, before Ofcom has made any determination.
	On Report in another place, the Government recognised that such litigation might cause problems and moved an amendment—now subsection (4) of Clause 101—that required third parties to obtain Ofcom's consent to proceedings alleging breaches of licence conditions. That was an improvement on the Bill, but there was no indication as to what criteria Ofcom would use in deciding whether to give consent to the action, and the communications providers remain exposed to the cost and risk of litigation.
	It also raises the question of whether Ofcom, by giving leave to bring the case, would prejudice a fair hearing even though it had taken no formal decision. This new encouragement to third parties to litigate against communications providers has been stuck into the Bill without any justification in terms of the potential benefits to consumers who, in any event, have access to a free ombudsman or alternative dispute resolution. Nor have the Government identified cases of existing detriment which might be remedied by the litigation they are encouraging. No attempt has been made to found the novel concept of pre-determination in litigation on any general principle or to say whether it is now the Government's policy to introduce similar measures in other areas of regulation.
	I can see no requirement in the EU directives for such a provision, which is likely to be deployed by large corporations attempting to use the courts as an alternative to regulatory procedures. Enforcement powers, including Ofcom's right to impose substantial fines, are already being strengthened in the Bill. We do not need this extra process. I beg to move.

Baroness Buscombe: Her Majesty's Opposition supports this amendment.

Lord McIntosh of Haringey: That was a very wide-ranging attack on what is a simple provision in the Bill. I am surprised to find both opposition parties adopting this position.
	Amendment No. 119 appears to be aimed at removing the right conferred by Clause 101 on those who may be adversely affected by a breach of a condition of entitlement under Part 2 to bring court proceedings for damages or other appropriate redress without Ofcom having first found a breach. We have already discussed the time element of this, so I shall not go into it again.
	Clause 101(1)(a) allows affected persons to bring proceedings against providers of networks, services and associated facilities who are in breach of a condition of entitlement set out under Clause 42. By removing that provision, the amendment would limit the right to bring proceedings to cases in subsections (1)(b) and (c); that is, where Ofcom had previously issued an enforcement notice or a direction and the conditions of that instrument had been breached. That would be roughly equivalent to the position as it is.
	Section 18 of the Telecommunications Act 1984 provides a right of action where the director general has issued an order to enforce compliance with a licence condition imposed under the Act and the licensee has breached that order. The noble Lord, Lord Avebury, asked why we are proposing to change it.
	We propose to do so because, as a matter of principle, we consider it important that obligations such as those laid down by conditions of entitlement set by Ofcom under Clause 42 should provide worthwhile safeguards and benefits to businesses and consumers who deal with the suppliers of network services and associated facilities. In order to make those worthwhile, they must be readily and effectively enforceable, which means that all those adversely affected by a breach should be able to attain adequate financial or other redress for their loss without delay or difficulty.
	That is not what happens at the moment. Oftel has no power to award compensation and the only express right set out in the 1984 Act for third parties to bring proceedings is where a licensee is in breach of an enforcement order issued by the director general. It means, in effect, that a licensee in breach of an order, which is the only time that it can in fact be made to work, will in effect be committing a second or subsequent breach of the licensed condition in respect of which the order was made. What that will do is give a "free strike" to the operator. There will be no right of redress for the initial breach, however serious its consequences for those who suffer as a result.
	I do not apologise for the fact that we have introduced measures to improve the rights of customers and others in this area. Those are the provisions for customer redress schemes set out in Clauses 49 to 52, and for Ofcom to require the payment of compensation when it orders a provider's service to be limited or suspended in urgent cases under Clause 95, or for serious or repeated contraventions under Clause 97.
	The provisions of Clause 101(1), in particular those set out in paragraph (a), are not only desirable, but a necessary complement to these measures. They extend the possibility of obtaining compensation to those who are not "consumers" and so would not be entitled to use the redress schemes envisaged elsewhere in the Bill. They allow third parties the possibility of bringing proceedings in the civil courts on their own account rather than having to depend on Ofcom to take action and secure redress.
	It may not always be appropriate for Ofcom to take the lead in this. If, for example, a small number of people or firms have suffered, then the wider public interest might declare that it was not a matter for Ofcom. But that would mean that for those people the loss of the right to compensation and the possible extra delay in ensuring additional compliance could be very serious. This should be a matter for the courts. It is right to allow third parties to take action on their own account if they think that it is worth their while.
	In saying that I am not issuing an open invitation to anyone to take action against operators. People do not resort to court action unless they are seriously aggrieved. Why should they involve themselves in the risk and possible expense of doing so? In order to take advantage of this, they must show that they have suffered loss or damage; there is a defence of due diligence provided in subsection (3); and in subsection (4) they have to acquire Ofcom's consent. I suggest to the Committee that those protections are sufficient to justify the protection which we are providing for consumers and third parties.

Lord Avebury: In his reply, I noticed that the Minister did not say anything about the ombudsman, although that procedure is available to those who feel that they have a grievance. One would imagine that the Government would want to encourage that kind of resolution process rather than everyone having to go through the courts. Furthermore, if ultimately a remedy is available from a determination by Ofcom, the person could go to court with the support that such a determination had been made. He would then be on much stronger ground than if Ofcom merely were to give him "leave" to go to court. The noble Lord also did not comment on the prejudicial effect on the view of the court if Ofcom gives leave for the proceedings to be brought.
	For all those reasons, I find his reply profoundly unsatisfactory and I hope that we shall not go on like this. If we keep on receiving the same kind of response from the Minister, it will mean an awful lot of work left over for the Report stage. However, under the circumstances, it is clear that I can do nothing but—

Lord McIntosh of Haringey: I have tried to confine myself to the provisions of the amendment. If the noble Lord, Lord Avebury, wants to talk about other matters such as the ombudsman, he is welcome to do so, but the amendment does not provide anything which would enable me to talk about the wider matters to which he referred.

Lord Avebury: I say only that the Minister appears to think that people in this situation would not get redress from the ombudsman because he did not even bother to mention him. Therefore he is seeking to encourage them to go to the courts, when they have the opportunity to do so and when they get leave from Ofcom to proceed with such litigation. I do not agree with that attitude and I am sure that we shall see these matters dealt with again on Report. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clauses 101 agreed to.
	Clause 102 agreed to.
	Clause 103 [Application of the electronic communications code]:

Lord Avebury: moved Amendment No. 120:
	Page 98, line 41, at end insert—
	"( ) In this section persons to whom the electronic communications code may be applied shall not be restricted to telecommunications operators."

Lord Avebury: I hope that we have come to a matter on which we shall be able to reach a certain amount of agreement between the two sides of the Committee. I am sure that once I have set out the arguments, we shall have a satisfactory response from the ministerial Bench.
	These amendments deal with code powers originally set out in the Telecommunications Act 1984 and now, as amended by Schedule 3, renewed in this legislation. Under these powers, certain owners of transmission towers and masts are protected from site landlords either terminating the lease on the availability of the land, thus removing the operators from the site, or from trying hugely to increase rents when contracts come to an end.
	Code powers provide the tenants of land on which the mast and towers are located with the option of a fair market review or a court review in the case of such action. This would, in turn, encourage more telecomms operators who hold code powers to protect their individual sites and to use shared sites provided by independent operators, enabling those operators to protect and retain key national broadcast network sites.
	The situation regarding the application of the code to planning legislation is not specifically addressed in the Bill. Although this creates an anomaly as to what the position is regarding the interaction between this and the new code, in the absence of express provisions, it is likely that planning legislation will be interpreted and treated in the same way as is the case prior to the Bill.
	The consultation paper, The Granting of the Electronic Communications Code by Oftel, says that all providers of electronic communications networks can apply for the grant of code powers under the Bill. The paper deals with the need to encourage sharing of apparatus. In the case of radio masts, it says that planning considerations make sharing desirable and sometimes necessary. Paragraph 2.13 of the paper says that they would look favourably on more applications where evidence is produced showing the applicants' willingness to share infrastructure. This is encouraging to the owners of towers and masts, where there is a strong business case for sharing, but we consider that it would be useful if the Bill reflects the ideas in the paper.
	We are in any case concerned that the providers of towers and masts will have to renegotiate a significant number of contracts with their landlords and customers, placing them under a significant additional financial burden if the issue of charges and the existing contractual arrangements is not clarified. The impact of the delay on these operators' ability to carry on their business should not be underestimated, and could severely impact on the future of the timely development of existing sites for shared telecomms networks and their financing of the ongoing roll-out of DTT and DAB, jeopardising the Government's proposed switchover to digital date of 2010.
	Presumably, Oftel will begin to consider applications for code powers only after 1st June when the consultation period ends. We suggest that the Government address the problem of uncertainty and expense which the Bill imposes on the operators of towers and masts, whose optimum utilisation of their assets and delivery of services is so essential to several aspects of Government policy. I beg to move.

Lord Evans of Temple Guiting: I listened carefully to the noble Lord, Lord Avebury. I was fortunate enough to have a discussion with him yesterday about the amendment. We fully understand that it is related to a concern expressed by Crown Castle about the current procedures for control of rents as based on shared transmitter masts. The electronic communications code is not really the applicable instrument for this concern. The market review of broadcasting transmission services will determine what regime is applied in the future. However, I have listened carefully to the concerns raised by the noble Lord and have agreed to give a full written response to his concerns which he will have before Report.
	Amendment No. 317 rightly identifies that the change in terminology under the new regime will have a knock-on effect on planning law. However, Clause 399 already provides the Secretary of State with the power, by order, to amend secondary legislation to ensure that the terminology they use matches that of the Bill. All secondary legislation, including the general development orders, will, wherever we consider it necessary, be amended by an order made under Clause 399.
	In the light of what I have said, I ask the noble Lord to withdraw the amendment.

Lord Avebury: I am very happy to withdraw the amendment on the basis of the Minister's kind offer to let us have a paper on this matter. We will discuss that with the industry and it will, I hope, resolve the matter so that we do not need to return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 103 agreed to.
	Schedule 3 agreed to.
	Clauses 104 to 107 agreed to.
	Clause 108 [Enforcement notification for contravention of code restrictions]:

Lord Evans of Temple Guiting: moved Amendment No. 121:
	Page 103, line 7, leave out "making of the payment" and insert "taking of the steps"

Lord Evans of Temple Guiting: The amendments correct two inconsistencies. Clause 108(4)(b) incorrectly limits the fixing of enforcement timescales to the making of payments. However, a notified provider can be ordered to take steps other than the making of a payment under Clause 107. Thus the amendment of Clause 108 will correct this divergence.
	Clause 111 uses the term "operator" everywhere except subsection (5); this discrepancy could lead to ambiguity. This problem is rectified by the amendment. I beg to move.

Baroness Buscombe: I am grateful to the Minister for giving us prior notification of these technical amendments. In a Bill this complex, it is essential that terminology is consistent, and we are happy to accept the amendment on that basis.

Lord Avebury: We, too, are very happy to accept the amendments. However, if, at this late stage of the Bill, we are still discovering inconsistencies within a single clause, we worry that other matters, which so far have not been picked up by the Bill team, may find their way into the Bill when it finally reaches the statute book, by which time it will probably be too late to deal with them. Of course, in a vast piece of legislation of 500-odd pages, it is inevitable that a few such muddles will occur.

On Question, amendment agreed to.
	Clause 108, as amended, agreed to.
	Clauses 109 and 110 agreed to.
	Clause 111 [Procedure for directions under s. 110]:

Lord McIntosh of Haringey: moved Amendment No. 122:
	Page 106, line 37, leave out "contravening provider or contravening supplier" and insert "operator".
	On Question, amendment agreed to.
	Clause 111, as amended, agreed to.
	Clauses 112 to 115 agreed to.
	Schedule 4 agreed to.
	Clause 116 agreed to.
	Clause 117 [Conditions regulating premium rate services]:

Baroness Buscombe: moved Amendment No. 122ZA:
	Page 110, line 15, after "promotion" insert ", provision of information to consumers"

Baroness Buscombe: My noble friend Lord Lucas apologises for his absence and has asked me to speak to this amendment on his behalf. It gives me an opportunity to raise one or two additional issues within the context of the amendment.
	The amendment relates to premium rate phone lines that are used as a payment method for games such as scratch cards included in magazines or competitions or radio and television programmes. These games are characterised by a lack of information for consumers as to their chance of winning, the real nature and value of the prize and often the identity of the promoter—an accommodation address is used—as well as the real cost of participation. The purpose of the amendment is to ensure that Ofcom has the power to require the promoters of these games to provide a proper level of information to consumers. My noble friend asked whether the Minister could show that that was already the case.
	We are aware that the Minister responded to a question in relation to premium rate services in a letter addressed to myself, dated 30th April. There he stated that early amendments in the Bill—Amendments Nos. 1 to 4—provide for a premium rate service regulatory regime, contained in Clauses 117 to 121, to cover an additional category of electronic communications network provider. That is a category of provider whose network is used for the provision of premium rate services under circumstances in which the agreement that permits such use is with an intermediary, or a provider of an electronic communications network or service. The amendments aim particularly at the problem of premium rate services provided from electronic communications networks or electronic communications services overseas, via what is known as an international direct dialled number. That question was raised by the noble Baroness, Lady Gould of Potternewton, during Second Reading on 25th March.
	I should like to add a comment from the Advertising Association in relation to the issue. The association says that it fully understands and supports the concerns originally raised by Her Majesty's Opposition in another place that there should be proper regulation of advertisements promoting premium rate services. However, the fact that the Advertising Standards Authority was not mentioned at all during the debates worried the Advertising Association, given that there seemed to be an inadequate impression of regulation in this area.
	The original aim in setting up Ofcom was to reduce regulatory overlap. However, the government amendment in the Commons has increased regulatory overlap in the association's view. Any advertisement featuring a premium rate number will now come within the remit of the code of ICSTIS, the existing statutory television and radio advertising code or within the British codes of advertising and sales promotion, administered by the ASA for non-broadcast advertising. The ASA has sanctions available to it that are not available to ICSTIS; for example, the media will refuse to carry advertisements likely to be, or found to be, in breach of the code. In January, the ASA published an adjudication banning a clearly irresponsible advertisement for air guns that had been placed in the Daily Sport and advised customers to call a premium rate number in order to make a purchase. ICSTIS had considered the matter but declined to investigate the case on the basis that it did not think there had been a breach of its code.
	The Department of Trade and Industry has given the ASA some reassurance that there is no intention to undermine the current balance of responsibilities between ICSTIS and the ASA, but it would be extremely helpful to have a statement to that effect from the Minister. I beg to move.

Lord Thomson of Monifieth: I would like to support the comments of the noble Baroness, especially the part about the concerns of the Advertising Association with the regulatory framework that the Bill is creating. I shall expand a little on the points that she made in the second half of her remarks.
	I speak with a degree of expertise in this matter, if I may say so immodestly, since in a previous life I was chairman of the Advertising Standards Authority, regulating print advertising and associated things, before going on to be chairman of the Independent Broadcasting Authority, which regulated advertising on television. The measures in the Bill, and the creation of Ofcom in particular, show the need for a revised regulatory structure that prevents the kind of overlap to which the noble Baroness referred.
	At yesterday's annual luncheon of the Advertising Association, where the noble Baroness was a fellow guest, the new chairman of Ofcom sought to describe that wider framework that we seek. It would be helpful to have the Government's reaction to those ideas. My own experience—which is interesting, given that I come from a background of a working politician—in general led me to believe that self-regulation is much better than statutory regulation, all things being equal. The trouble is that things are rarely totally equal, and this matter is a prize example of the overlap that can occur.
	In yesterday's interesting address, the noble Lord, Lord Currie, spoke about the very useful task force that he helped to set up with other interested parties, and referred to a system that he called "co-regulation". That co-regulation existed, in a sense, in the situation to which the noble Baroness referred, in the relationship that Oftel had with ICSTIS in the area of premium rate telecommunications. However, the matter should be seen in a wider context, and I hope that by the time we reach Report stage we shall have a clearer picture of a wider system of regulation in this field.
	From the remarks made by the noble Lord, Lord Currie, I understand that the task force has made some eminently sensible institutional proposals for such a scheme of co-regulation between the Advertising Standards Authority and the new arrangements set up for Ofcom. I am happy to see in his place my distinguished successor but two as chairman of ASA, the noble Lord, Lord Borrie. The proposals that are now under active discussion build on the widely acknowledged strengths and reputation of the ASA, but in a way that keeps the broadcast scheme wholly separate from the ASA's traditional role and arrangements in relation to non-broadcast advertising. Of course, that is a necessary separation to achieve.
	It is hoped that the further details of those arrangements will be revealed shortly, as a result of further consultations during the summer, according to the noble Lord, Lord Currie.
	I confine my final remarks to saying that we have had before us for a couple of years the provisions of this major reorganisation of the world of telecommunications and broadcasting. In a sense, this is the third legislative discussion of these matters, so it is strange that it is at the tail-end of this process and in your Lordships' House that we have to press the Government for some clarity. I hope that we shall hear from the Government on this amendment, which addresses the question of premium rate telephone calls but is the tip of a much wider issue. Perhaps they will tell us how they propose to respond to the proposals put forward by the noble Lord, Lord Currie.

Lord Baker of Dorking: I express support for the general tenor of the regulation envisaged in these clauses, and the regulation that we debated earlier—the general powers of Ofcom—as they are all interrelated. I should declare an interest in that I am chairman of an ISP that provides Internet services to small and medium-sized companies, and of a company that provides mobile services, some of whose revenue is drawn from premium rate services.
	Because I have experience of those industries, I am convinced that the regulation envisaged in the Bill is necessary and appropriate. I bring a certain amount of experience to this debate. It fell to me in the 1980s to introduce the original legislation establishing Oftel, and to privatise BT and Cable & Wireless. It was the first time that we had had to grapple with the concept of the regulation of a major industry.
	I think it is generally recognised that Oftel was the most successful of all the regulators of privatised utilities. It was lucky in having three outstanding directors-general: Professor Carlsberg, Donald Cruickshank and David Edmonds. They created the possibility of growth in a very competitive and huge industry. The services referred to in Clauses 29 to 145 represent billions of pounds a year. In the clauses on premium rate the figure is £1 billion a year. It is rather ironic—and it rather spells the fate of Ofcom—that these clauses are being taken at full gallop. I was present on Thursday afternoon to make a contribution; I slipped out to do a half-hour radio interview, and when I returned 30 clauses had been added to the Bill. There are the inevitable sexy debates on television, radio and newspaper mergers—for all of which I once had ministerial responsibility, and I know how sexy they are—but the clauses that we are now debating affect the economic well-being of hundreds of thousands, if not millions, of people in our country. So I strongly support what the Government are doing.
	The clauses on premium rate services were not in the original Act in 1984, because premium rate services were not then offered. They were not offered until the 1990s. That indicates the strength of the developing nature of this market. I only hope that the Government have built in to their provision some flexibility in terms of definition.
	The next group of amendments seek to amend the Bill before it becomes a statute because some loopholes have been discovered. Other loopholes will emerge in the course of the next five or 10 years as new services come about. I only hope that somewhere in the Bill there is a mechanism for adapting to that without having to change legislation on the face of the Bill.
	I turn specifically to the responsibilities of ICSTIS. Until I was involved in this industry I did not know very much about ICSTIS—it was not a regulatory body which I had established or for which I was responsible. It is a very effective body. As the noble Lord, Lord Thomson, said, the most effective regulation is self-regulation. I certainly support his observation from considerable experience. ICSTIS is a very good example of an industry that is regulating itself. The point was made previously by the noble Lord, Lord McIntosh, that quite a lot of the regulatory powers for which Ofcom is the umbrella will be exercised by bodies funded by the industries that they will regulate. That is a very effective way of operating.
	ICSTIS has considerable powers. It deals with some rogue companies, where the consumer can be exploited, particularly the young consumer. It has quite severe powers. It can stop such a company operating; or it can issue a fine of up to £50,000. When I inquired of ICSTIS what was the statutory backing for the fines, I discovered that there was none—so here was a body issuing fines with no statutory backing. I suppose that it has been given some statutory backing in the Bill.
	However, I commend its method of operation very strongly indeed. I should have thought that the Press Complaints Commission—another body of self-regulation—could effectively look at ICSTIS. ICSTIS not only has "bark", it has "bite"; the Press Complaints Commission has a great deal of bark, but not very much bite. This is not the occasion on which to debate this matter—there will be an opportunity later in the Bill—but I should have thought that those of us who would like to see a strengthened Press Complaints Commission could look at the practices that have been developed by ICSTIS.
	I am very glad, therefore, that under these four clauses in the Bill the operations of ICSTIS have been brought within the umbrella of Ofcom. I commend to the Committee the effectiveness with which I have seen ICSTIS operating. It is a very effective regulator, and is a good example of how the industry has to develop. I am sure that the Minister will be able to give the assurances sought by my noble friend on the Front Bench. There may be some degree of overlap with the ASA. I was not particularly aware of that. The Minister will probably say that ICSTIS has powers to affect not only the nature of advertisements but the way in which companies operate. So I am generally supportive of what the Government are doing in these matters.

Lord Borrie: It is extremely interesting to hear both the general and the particular remarks of the noble Lord, Lord Baker of Dorking. I do not know whether Ministers will reflect on the general attitude he has expressed to chunks of the Bill going through unamended and without too much discussion. Ministers have said on several occasions in Committee that, if we continue in the way in which we dealt with Clause 3, we shall be here for an incredible length of time. But the noble Lord, Lord Baker, made some useful points.
	The noble Lord commended the way in which ICSTIS operates, under its distinguished chairman, Sir Peter North—principal of Jesus College, Oxford, and a former vice-chancellor of that university. He also commended the way in which the Government propose in these clauses to bring operations under the umbrella of Ofcom. I heartily agree.
	In my capacity as chairman of the Advertising Standards Authority I was grateful to the noble Baroness, Lady Buscombe, and the noble Lord, Lord Thomson, for their comments—particularly when the noble Baroness mentioned that the Advertising Standards Authority had published an adjudication early in the year banning a clearly irresponsible advertisement that had appeared in the Daily Sport advising customers to call a premium rate number in order to make a purchase of airguns.
	The ASA has some sanctions available to it which are not available to ICSTIS, and vice versa. But in that instance the sanction that the ASA had available—which was to issue a so-called "ad alert" to the media regarding the carrying of advertisements likely to be contrary to the code—was immediately effective and useful.
	The noble Baroness, Lady Buscombe, and the noble Lord, Lord Thomson of Monifieth, expressed some concern about regulatory overlap, to use shorthand. I do not feel all that bothered about it. If two bodies have a power to some extent over the same field—in this case misleading or irresponsible advertisements—and have a range of sanctions and powers as self-regulatory bodies, does it matter a great deal if there is overlap? I suggest that it would matter a lot more if there were a hole or a gap between the self-regulatory bodies. The fact that there is overlap means that the publisher of an advertisement such as the one I mentioned relating to the use of airguns, obtainable through the use of premium rate services, comes under the aegis of two sets of sanctions. That is certainly better than having none. If it is too difficult to organise precisely where the lines should be drawn, the present position does not seem too bad.
	I strongly agree with the later points made by the noble Lord, Lord Thomson of Monifieth—particularly drawing on the carefully thought-out speech made by the noble Lord, Lord Currie of Marylebone, the chairman of Ofcom, at the Advertising Association annual lunch yesterday, which I attended. It was in immediate reaction to the Advertising Association's task force, which had proposed a self-regulatory body to deal with broadcast advertising, modelled on the system that operates for non-broadcast advertising. It is a very promising indication by Ofcom that it will use the powers that we have discussed in Clause 3 to support and promote self-regulatory systems so long as they are effective and financially viable. That was a very useful comment.

Lord McIntosh of Haringey: This has been a wide-ranging and well-informed debate about important subjects—which has almost nothing to do with the amendment before the Committee. If we are to make progress, strictly speaking, I ought to confine myself to the amendment; but I shall have to respond to one or two of the points made.
	The amendment seeks to add the phrase,
	"provision of information to consumers",
	to the existing wording of these clauses, which refer to the provision, content, promotion and marketing of such services.
	After the debate in the Commons, which was about the amendment—it was about the type of things that customers are told about premium rate services—I can give the assurance that the wording in the Bill covers the concerns raised. For example, the present ICSTIS code requires that,
	"the service provider must state clearly in all promotional material the likely charge for calls to each service".
	That is exactly what the noble Lord, Lord Lucas, and the noble Baroness, Lady Buscombe, are looking for. The provisions are being carried over into the code, which will be established for the regime once the Bill has been passed. Currently, ICSTIS is consulting on the draft code. I suggest that we should not add unnecessary words to the statute.
	We were chided for not making reference to the Advertising Standards Authority. The ASA is not the body concerned. I am happy to confirm that premium rate service providers are not exempt from the rules that govern all advertisements and promotions in non-broadcast media. They are not exempt from the advertising industry's self regulatory standards regime, which is set out in the British Codes of Advertising and Sales Promotion and administered by the Advertising Standards Authority.
	The provisions of Clauses 117 to 121 do not detract from the work of the ASA as an effective regulator of non-broadcast advertising. The combination of statutory regulation with self-regulation is exactly what we seek. Action by the ASA can result in posters, advertisements, and promotions that are not,
	"legal, decent, honest and truthful",
	being withdrawn and misleading advertisers being reported to the Director General of Fair Trading.
	The remits of the ASA and ICSTIS extend to advertising in the new media, including e-mail, Internet banners, pop-ups, and so on. So I can give all necessary assurances about the role of self-regulation and the balance between self-regulation and statutory regulation. I have nothing to say against the speech yesterday of the noble Lord, Lord Currie. I was not able to accept the invitation to the lunch, but clearly he was talking about co-regulation of broadcast advertising. We support the line that he has taken, that Ofcom should be proportionate and targeted and should not be too bound by convention in looking for effective regulatory solutions. The noble Lord, Lord Currie, already acts as the Bill envisages.
	Finally, I can assure the noble Lord, Lord Baker, that there is plenty of provision for flexibility. The Bill provides the outer envelope of what can be regulated. However, as matters develop they can be covered by the code made by ICSTIS and approved by Ofcom. That should provide the required flexibility.

Baroness Buscombe: I thank the Minister for his response. I was not surprised to hear his reference to a wide-ranging debate. I believe that it was important to raise the issues on which I touched. I am grateful to the noble Lord, Lord Thomson, my noble friend Lord Baker and the noble Lord, Lord Borrie, for their contributions to this important debate.
	As my noble friend Lord Baker said, in terms of, in a sense, balance with regard to the scrutiny of the Bill, there has perhaps been a galloping through of the clauses both in this House—

Lord McIntosh of Haringey: I shall certainly not apologise for us taking 30 clauses without amendment. That is an achievement and nothing to apologise for. If no one proposes amendments to clauses they should go through. I wish it could happen more often.

Baroness Buscombe: While I accept the Minister's intervention, I was not looking for an apology. I was not suggesting that that was a problem. But it is important that we show regard to this enormously important electronic communications network and services industry which contributes so much to the well-being of the nation. Those parts of the Bill to which we referred are extraordinarily important.
	I thank the Minister for his response in relation to the amendments of my noble friend Lord Lucas. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey: moved Amendment No. 122A:
	Page 111, line 13, leave out "or (11)" and insert ", (11) or (11A)"

Lord McIntosh of Haringey: Amendments Nos. 122A, 122B, 122C and 122D respond to the concerns expressed by the noble Baroness, Lady Gould of Potternewton, at Second Reading on 25th March. We have further discussed the matter with ICSTIS. We recognise that there is a potential loophole in the arrangements in Clauses 117 to 121, which these amendments seek to close.
	Amendment No. 122B is aimed at ensuring that, even when a premium rate service provider is located abroad and the arrangements for the use of the electronic communications service for the provision of the premium rate service in this country is via an intermediary, there is still a person who is subject to regulation—a person who, in the last resort, can be required to take action in respect of a premium rate service which falls foul of the regulatory arrangements.
	So, even if an unscrupulous provider of premium rate services tries to avoid regulation by operating via a foreign network, Ofcom can, should the need arise, still impose conditions on the UK provider of the electronic communications network which is used for the provision of the service.
	Amendment No. 122D defines what is meant by an intermediary service provider for the purpose of these provisions. Amendments Nos. 122A and 122C are consequential on the other two amendments. The amendments seek to ensure that the premium rate services regime will operate effectively. I beg to move.

Lord Avebury: We object to these amendments because they inappropriately extend the regulation of premium rate services. They also reverse a government amendment which was correctly made at the Report stage in another place.
	In the UK, premium rate service providers establish a service, which may be, for example, telephone voting for "Big Brother" by having a telecommunications provider, such as BT, allocate one, or a multiple, of its telephone numbers to the service in the 09XXX range. BT undertakes to deliver all calls to the PRS provider, wherever they come from, in return for a share of the revenue generated from the incoming traffic. In the industry jargon, BT is acting as the "terminating operator".
	The PRS provider, if in the UK, is bound by the ICSTIS code to promote and sell its service in accordance with the rules set down by ICSTIS. The "terminating operator" has a condition in its Telecommunications Act licence to use its commercial leverage over the PRS provider to make sure that it abides by the ICSTIS code. Not all calls to PRS services are made by BT customers. They could come from anywhere—the customers of mobile operators, cable operators and overseas operators. The network operator whose customer makes the call to the PRS provider is known as the "originating operator". Through the interconnect and call-routing agreements, the call is passed to the terminating operator and is then delivered to the PRS provider.
	The originating operator is paid for the conveyance of the call but does not receive a share of the revenue from the premium rate service. In fact he has no commercial leverage or relationship with the PRS provider. He does not form part of the PRS value chain and has no liability for— or way of—enforcing the ICSTIS code.
	The rationale for the inclusion of the PRS in the Communications Bill is that, after the abolition of the Telecommunications Act licences, Ofcom will need to maintain a requirement on terminating operators to exercise leverage over the PRS providers. There is no disagreement between us on that point.
	The version of the Bill that emerged from the Committee stage in another place resulted from agreement between the industry and the Government that the definition in the Bill of a PRS provider was slightly wrong, in that it unintentionally defined the originating operator as forming part of the PRS value chain. The definitions in Clauses 117(10) and (11) were introduced with industry agreement on Report in another place so as to exclude the originating operator by stipulating that there had to be a commercial relationship between the PRS content provider or aggregator and the electronic network communications provider for a business to be defined as supplying PRS. It is simply unreasonable and unworkable to expect the originating operator to exercise leverage over the PRS content provider to bring it into line with the PRS code.
	As we understand the amendments—and as was confirmed by what the Minister just said—they are an attempt to regulate PRS content providers that reside overseas. That is the Vanuatu problem, as it has been defined by ICSTIS, where a call may be originated from the United Kingdom but the content provider is in a foreign location and the call may pass through many intermediate service providers before it reaches its destination. Clearly, BT or whoever is the originator of the call cannot exercise direct control of those providers, so the Government are trying to regulate any communications network operator that passes traffic through them, including the originating operator.
	There are two possible scenarios under the amendments. Either the traffic is passed to what is called an intermediary service provider, or it is passed direct to a terminating operator. In the first case, where there is an agreement between an originating operator and the intermediary service provider, which is presumably an international carrier, the concept of a UK terminating operator is redundant. Any calls to an overseas premium rate number would go straight from the originating operator to the international service provider—it might transit through BT, but that is not relevant to the amendments.
	It is unworkable to place PRS regulation on originating operators in that way. To the extent that the intention is to cover UK intermediary service providers, the provisions are unnecessary, because all the possibilities are dealt with in Clause 117(9)(c) and (d). In the second case, where there is,
	"an agreement subsisting between that person and . . . a person who is a provider of the relevant service by virtue of subsection (10) or (11)",
	the originating operator is again drawn into the value chain of PRS supply, which is surely not the Government's intention.
	In fact, the effect of the amendments is to throw out the baby with the bathwater. They have undone the good work of the previous amendment and threaten to introduce a measure that is unworkable and an unwarranted extension of the scope of premium rate regulation. So I hope that the Government will reconsider what they have done at the last minute by the amendments.

Baroness Buscombe: Her Majesty's Opposition also object to the amendments. They are intended to clamp down on unscrupulous foreign premium rate service providers. We are absolutely in favour of that. However, in attempting to tackle the problem, the amendments cast the net across the whole of the premium rate services industry. The Government have acknowledged that that will expose United Kingdom mobile operators to further regulation, despite assurances that the Bill would not extend the scope of regulation in that area, but they believe that we should not mind that if the amendments are the only way to tackle the problem.
	The UK mobile industry disagrees with the position adopted by the Government. No pre-legislative consultation was undertaken; the mobile industry was not consulted in any way about the amendments. That demonstrates the confused attitude that the Government have acquired over premium rate services regulation.
	The effect of the amendments is to reverse the government amendment made on Report in the House of Commons, as agreed with the industry and with ICSTIS, and threatens to put in place a measure that is unworkable and impractical. The originating operator—that is, the network operator whose customer makes the call to the PRS provider—will be unable to exercise leverage over the PRS content provider to bring it into line with the ICSTIS code.
	We believe that the Government should withdraw the amendments immediately and undertake consultation with the mobile industry on how effectively to tackle the problem of unscrupulous foreign PRS providers. The Government should not adopt a blanket approach that will extend the scope of regulation in the area of premium rate services. Indeed, we have heard that the Department of Trade and Industry Bill team this morning met the UK mobile operators, together with Cable & Wireless, to discuss the amendments. That is the first time that they have met the Government to discuss that whole area.
	Unfortunately, there is no sign of the Government moving on the issue as a result of that meeting. Although we all agree that there is a problem with offshore premium rate service providers, we need more time for discussion and consultation on the issue. The premium rate service provisions are the part of the Bill least consulted on, as they were not in the draft Bill scrutinised by the Joint Committee. We urge the Government to rethink and withdraw the amendments, because they are not helpful to the industry or to the future working of the Bill.

Lord Phillips of Sudbury: I declare an interest, in that my firm has acted for ICSTIS since it was formed. I concur with what the noble Lord, Lord Baker, said about the success of ICSTIS during the years of its existence. When one considers that it is an entirely voluntary body, the success that it has achieved—which is now being followed in Europe, where ICSTIS is the model—says a great deal for both the flexibility and creativity of its functioning.
	Although I agree with the noble Baroness, Lady Buscombe, that if there has been insufficient consultation with the mobile phone operators, that is an unhappy state of affairs, my sense is that Clauses 117 and 118 give discretionary powers to Ofcom in effect to underpin and support the work that ICSTIS is doing and has still to do.
	The market that we are discussing here is enormous and is growing at a phenomenal rate. Premium rate calls constitute a market of more than £1 billion as it is, with a huge expansion in prospect. It is also worth noting—I am sure that many Members of the Committee are aware of it—that premium rates can be as high as £15 per 10 minutes of call. ICSTIS is bombarded with complaints—especially with regard to services provided from abroad, where bills often run into thousands of pounds. Telephone users are vulnerable to abuse of phones by children, relatives, neighbours and passers-by.
	As I see it, the aim of the government amendments is to ensure that the conditions imposed by Ofcom under Clause 117, and hence the codes promulgated under Clause 118, regulating premium rate services, can deal effectively with those services on international numbers—that is the nub of it—to such places as Guyana. It is vital that, so far as possible, the regulatory arrangements do not allow regime shopping by those international providers—often, of course, of porn and the like—designed to circumvent the consumer safeguards that ICSTIS has so successfully provided hitherto.
	ICSTIS is not a law unto itself; it is susceptible to judicial review. Many cases have been contemplated against it; a few have been brought; but none that the High Court has thought fit to uphold. So it is subject to the law of the land. Many premium rate services are intrinsically volatile and susceptible to abuse. It is partly because of that that consumers can be grievously misled by rogue services and providers.
	The attempt to bring the intermediate links into that regulatory net is essential. Otherwise, frankly, I do not see how that rather fragile web of constraint can survive. But we must be confident that regulators—ICSTIS in this case—can act decisively with the UK networks to stop access to unacceptably harmful international services, even where the foreign network does not have a direct contractual relationship with the UK content providers, as is generally required under the original terms of the Bill.
	As I said, some breaches of ICSTIS rules by overseas Internet services have resulted in avalanches of complaints. On the understanding that the amendments now under debate affecting call-originating networks are restricted to the circumstances that I described, and subject to the oversight of the High Court, which is not to be underestimated—indeed, that court would strike down any provisions by ICSTIS or by Ofcom that were unreasonable—I suggest that the amendments are not misconceived.

Lord McNally: Judging by what has been said, it is clear that there are misgivings. In the past, I have given the Government Front Bench the assurance that noble Lords on this side would not divide during the Committee stage. However, that does not apply to government amendments which, if allowed to go through, would then be inserted in the Bill. I ask the Minister to consider whether it would be more prudent to withdraw the amendments at this stage, so as to allow for the consultation that both Front Benches on this side of the Committee have requested.

Lord McIntosh of Haringey: It is most interesting to hear the views of the mobile phone industry as expressed by noble Lords opposite—though more tactfully, perhaps I should say, as reflected by noble Lords opposite. It is not as if we had not heard about such concerns previously. But I must take seriously the comments just made by the noble Lord, Lord McNally. He is threatening rather than promising in his approach. Nevertheless, I shall not be tactless with him or, rather, I shall not be any more tactless than I have already been.
	Let us start from where we are in agreement. We are in agreement that we do not want to regulate unnecessarily. We do not want to stifle the growth of the premium rate services industry, because it provides a valuable service; otherwise, we would be shutting it down rather than seeking to regulate it. I believe that we are in agreement that there is the potential for abuse here—indeed, there have been, and are, abuses, as outlined by the noble Lord, Lord Phillips.
	Most premium rate services providers are honourable, but there are those who use the services to fleece the unsuspecting public, including children. Again, that is common ground. I believe also that we are in agreement that we do not want to leave loopholes in the legislation. There are loopholes here, especially with international providers. I did not hear any noble Lord express the view that we should not be seeking to achieve something of what these amendments seek to achieve.
	We must decide where we are in disagreement, how far those disagreements are the result of misunderstanding, and how far the result of genuine disagreement. One misunderstanding needs to be dealt with at this point; namely, the suggestion that, somehow, what we are doing here is to reverse amendments made in another place. That is certainly not the case. I shall gladly write with both chapter and verse to all those who have taken part in the debate. We made amendments in another place, but those now before the Committee complement them. They do not contradict the amendments made in another place.
	Then there is the issue of where we may be in disagreement; namely, the degree of regulation of originating operators. It is important to understand how the regulatory regime for premium rate services operates. As I said to the noble Lord, Lord Baker, when dealing with the previous amendment, the Bill provides the outer envelope of services that may be subject to regulation. But the code, or, in the absence of a code, an order made by Ofcom under Clause 119, coupled with the conditions to be made under Clause 117, will provide the detail of the regulatory regime.
	Ofcom is already constrained when it comes to approving a code for regulating premium rate services. In accordance with Clause 118 (2)(d), (e), (f) and (g), Ofcom cannot approve a code unless it is satisfied that it is "objectively justifiable", that it does not discriminate unduly, that it is proportionate to its intended effect, and that it is "transparent". The latter are significant constraints. In my view, they are adequate and will provide the right balance to ensure that any code does not unnecessarily constrain innovation. Given the scope for abuse in this area, I do not believe that the Committee would feel comfortable with subjecting customers to new ways of ripping them off. I cannot imagine that any self-respecting, responsible network provider would object to being subject to regulation if it is the only entity in the United Kingdom capable of being regulated. I cannot believe anyone would say that we are prepared to do nothing to help protect customers from being exposed to unscrupulous PRS providers.
	I stand four square behind the purpose of these amendments. I do not believe that there is any case to answer of the sort alleged. The only issue upon which I am prepared to give way is that of the alleged lack of consultation. I recognise that a meeting took place this morning, but that those who attended it were not able to influence the Government's thinking on the amendments. I also recognise that it is proper for us to consult. I am grateful for the implied undertaking from the Opposition parties that they will always do the same rather than force us to a vote—

Baroness Buscombe: I thank the Minister for allowing me to intervene. We believe that the mobile phone industry has got this right. We are all in agreement in principle as regards what we are trying to achieve, but there is deep concern that the amendments, as currently drafted, threaten to put in place a measure that is simply unworkable and impractical. Therefore, would it not be better to withdraw the amendments at this stage and arrange a further meeting between now and the Report stage that could involve the DCMS as well as the DTI?

Lord McIntosh of Haringey: When I am in this position—that is, waiting to discover whether or not the Opposition will press an amendment—I stay silent. I wait until those concerned make up their minds on what to do. Then, if a Division is called, I rush out of the Chamber and put a message on the pager. The noble Baroness, Lady Buscombe, could have given me that credit. I was leading up to say that, on the issue of consultation—and only on that issue—I think it would be preferable for the consultation to continue. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 122B to 122D not moved.]
	Clause 117 agreed to.
	Clause 118 [Approval of code for premium rate services]:

Baroness Buscombe: moved Amendment No. 123:
	Page 112, line 18, at end insert—
	"( ) that the provisions of the code will not discourage innovation and investment in new forms of content-based communications services;"

Baroness Buscombe: Clauses 117 to 121 set out the basis for regulation of premium rate services (PRS). UK mobile phone operators welcome the Bill's requirement for co-regulation in this area. However, there is concern that the new powers being granted to the existing PRS regulator, the Independent Committee for the Supervision of Standards of Television Information Services (ICSTIS), could be used to regulate new forms of mobile content. Despite falling under the definition of PRS in the Bill, such services may not warrant regulation.
	Premium rate services offer consumers a wide range of information and entertainment services—such as news and weather, sport, traffic updates, competitions and adult content—via fixed telephone, fax, PC (e-mail/Internet), interactive digital TV and mobile telephone, which would include voice, text, WAP or the Internet. The cost varies between 10 pence per call to £1.50 per minute. The money paid for the call is shared between the telephone company carrying the service and the organisation providing the content.
	PRS regulation was originally invented to deal with pricing transparency of telephony offered over BT's network by service providers. As the money was collected via the BT bill, the service provider had no relationship with the customer and, therefore, had no incentive to behave scrupulously towards consumers. Hence the need for regulation. The UK mobile phone operators and ICSTIS have been working closely with the Government to ensure that the Communications Bill continues to provide consumer protection in the area of PRS.
	However, third generation (3G) mobile phone networks will offer innovative new content services, such as news video clips. Such services are likely to be defined as PRS under the Communications Bill, despite many of these services being directly provided by a network operator to its customers. Therefore, there is every incentive for a network operator to ensure a transparent and competitive price for such a service, with little room for unscrupulous behaviour. The failure of a network operator to behave responsibly would result in that operator losing customers to its competitors. In such circumstances, competitive forces rather than prescriptive regulations will ensure that consumers are adequately protected.
	A good example of that is an Internet service that is accessible via a fixed-line or mobile network for video conferencing. Under the existing ICSTIS code, on-line services are not to cost more than £20 and must be terminated by forced release; that is, the call is automatically cut off. For the most part, that is a sensible way of ensuring that consumers do not unwittingly run up large bills. However, for specialist applications such as video conferencing, that limit could render the product unusable because the consumer could not spend more than £20. Therefore, the amendment seeks to ensure that regulation is not applied in a manner that will discourage investment and innovation in new mobile content services and where there is no obvious consumer detriment warranting regulation. I beg to move.

Lord McIntosh of Haringey: I do not want to inhibit debate, but I said all that I want to say about this amendment in our debate on the previous amendment. I merely add that the £20 limit can be revised and almost certainly will be. I suggest that we add this issue to the matters that will be discussed when we consider the amendments that we have just debated.

Baroness Buscombe: I am grateful to the Minister for his response. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 118 agreed to.
	Clauses 119 to 130 agreed to.
	Clause 131 [Restrictions in leases and licences]:

Baroness Buscombe: moved Amendment No. 123A:
	Page 123, line 24, at end insert—
	"( ) The question whether consent has been unreasonably withheld in any case falling to be determined in accordance with subsection (5) shall be determined by OFCOM.
	( ) Where OFCOM has made such a determination, proceedings for breach of any provision of a lease or other agreement falling within subsection (2), which consists of or includes failure to obtain consent before doing anything to which that provision relates, shall not be instituted or continued in any court."

Baroness Buscombe: This amendment, Amendment No. 125A and a new clause were tabled and debated in another place. I return to them again to probe a little further. The answers provided by the Government at the time were rather brief and lacking in detail. It would be helpful if the Minister gave some additional guidance.
	I shall first give some background. At present, many occupiers of leased and rented properties, as well as many freehold property owners, are prevented from obtaining television and telephony services from the provider of their choice because of restrictions in their leases, tenancy agreements or—in the case of freehold property owners—a restrictive covenant. For example, if one lives in Milton Keynes, one cannot put an aerial or satellite dish on one's house, whether one owns or rents it. Unless one breaks the law, one must take television from the cable company. That denies the residents of Milton Keynes a choice that they may want and it leads to considerable dependence on one provider. As we saw with the demise of Aberdeen Cable, it also has unfortunate consequences for the householders who, in that case, were left without telephony services.
	Landlords, as well as landowners and property developers, impose such restrictions for a number of reasons. Sometimes they consider, for example, that the installation of a satellite dish will damage the fabric of their building or somehow cause it to be perceived as a less desirable place in which to live. Sometimes it is simply force of habit to impose such conditions. Very often, those restrictive covenants will have found their way into standard leases and other freehold agreements and are put forward by the lessor or vendor, or his solicitors, with little thought at all, other than a desire to retain as much control over the premises as possible for the lessor or vendor. It is acknowledged that lessees and owners can try to have such restrictions removed but unless the landlord or those with an interest in the covenant willingly agree to that—in that case, why are the restrictions imposed at all?—the process is slow, expensive and cumbersome, involving the Lands Tribunal and arcane law.
	The fundamental fact is that lessees and owners generally want to continue to live in their accommodation and are disinclined to do anything that may irritate or upset their landlord or other neighbours and be in breach of their leases or covenants. As a result of the risks involved, the bureaucracy that I have already outlined and quite understandable human behaviour, many lessees and owners are denied a choice of supplier when it comes to television or telephony. I venture that that is contrary to their human rights under Article 10 of the European Convention on Human Rights. I also suggest that it is unhelpful to the Government's objective to switch off analogue television and to achieve higher levels of broadband penetration and Internet access for all. If, for example, a householder is unable to receive digital terrestrial television and there is no cable in the street, unless he can erect a satellite dish, he will be unable to switch to digital television. In many vital areas, he will also be unable to receive broadband.
	The Government have acknowledged that a problem exists and are consulting on the deregulation of planning rules, which restrict or prohibit the installation of satellite dishes. The amendments would help them to achieve their objectives.
	That is the background which Clause 131 as drafted seeks to address. In other words, we believe that it has good intentions. It permits lessors not to grant their consent to the occupier's request to consent regarding any relevant restriction provided that he—the lessor—does not act unreasonably. That was seen to be an appropriate balance between the rights of lessors and lessees. I believe, however, that Clause 131 does not go far enough to give lessees and tenants true freedom in practice to choose their television or telephony supplier or make it easier for them to exercise that choice. In particular, it does not address the issue of restricted covenants in freehold property. That is the purpose of the new clause and the amendment.
	In another place, the Government indicated, in principle at least, that there was some support for the logic of the clause but failed to go much further. The best that they could offer was that they would review the issue in their review of the working of the new provisions in the Bill. The reasons provided were that making changes to property law is a hazardous undertaking with unintended consequences. Consultation and consideration of any proposals would take significantly longer than the time available during the passage of the Bill.
	It is difficult, however, to see why the inclusion of the new clause in the Bill would present such problems. The amendment would require the Secretary of State to consult Ofcom and such other persons as appeared to her to be appropriate, before bringing the clause into force. In other words, under the amendments it would be possible to iron out any potential problems before implementation. I therefore suggest that the Government should accept the proposal because it meets their concerns.
	Further, at present, whether a provision is unreasonable is determined under Clause 130(5). Presumably, that will be done by the courts, although the clause is silent on that matter. Therefore, protracted judicial proceedings may still be involved to secure the lifting of the restriction. Clause 131 therefore maintains a situation in which the onus is placed on the lessee or tenant to request the lessor's waiver of the restrictions. However, it turns an absolute restriction into a qualified one. The contractual effect of that is that if the lessor withholds his consent unreasonably, it puts him in breach of contract. That does not give the lessee carte blanche to proceed as if the restriction were not there; rather, the lessee would need to take action against the lessor for breach of contract via judicial proceedings, which may be time consuming and costly and which many lessees will consider too troublesome to pursue.
	We therefore need a much simpler and less daunting process. Accordingly, we seek to amend Clause 131(5) so that the question of whether something is not unreasonable shall be determined in accordance with Clause 131(5) by Ofcom. Where Ofcom acts, proceedings shall not take place in the courts. That means that, if Ofcom decides that a lessor has unreasonably withheld his consent, the lessee may proceed as if the consent had been given. That would not put the lessee in breach of his contract with the lessor.
	In another place, the Government indicated in response to the amendment simply that the courts should consider the test and that that was not an appropriate role for Ofcom. No further reasons were given. That was not an adequate response. That is why I return to the issue. Why, for example, is it not an appropriate role for Ofcom? Ofcom is, after all, responsible for looking after the interests of the community and consumers in relation to electronic communications networks and services. It is well placed to deal with that issue. Why are only the courts able to deal with the issue? Surely, if there is a way in which the difficulties for lessees that I have described can be addressed fairly and in a quicker and less costly manner, it deserves more careful consideration and explanation. I hope that that is what the Minister will give us. I beg to move.

Viscount Falkland: The noble Baroness has done the Committee a service in moving these probing amendments, which cover tricky, sensitive problems. We look forward very much to the noble Lord's response. My understanding is that the amendments would alter the current position on restricted covenants and other restrictions relating to satellite dishes and so on. It is still a difficult, complicated business that need not necessarily fall entirely within Ofcom's remit.
	Committee Members may have been involved, as I have, in disputes about dishes. Satellite dishes, to which I shall restrict my remarks, are now smaller and less obtrusive, if that is the basic cause of a covenant or restriction. Nevertheless, there is still a difficulty in landlords allowing leaseholders a free-for-all to erect such dishes. They may or may not cause the problems on which a restriction was based originally.
	I look forward very much to hearing the Minister's response to the noble Baroness's remarks. We remain to be educated on the issue. If it is produced at a later stage, perhaps we will be clearer about where we stand.

Lord McIntosh of Haringey: We must consider two key points behind these amendments. The first is whether it is right to give Ofcom a role that would otherwise be performed by the courts; that is, to decide, in the case of a dispute, whether it is reasonable for a landlord to withhold consent for something related to the provision of electronic communications services to a tenant. The second is the extension in Amendment No. 125A to freehold premises.
	On the issue of Ofcom's role as compared to that of the courts, I emphasise that it is not a matter of Ofcom's expertise of the technology involved and nor is it a regulatory matter. Neither of the principal roles of Ofcom are involved. It is a matter of striking a reasonable balance, based on quite general legal principles, between the rights and legitimate interests of the parties, taking full account of relevant precedents, particularly from the field of property law. Those are matters on which the courts, rather than Ofcom, are well versed, and on which they have appropriate expertise. I see no advantage in transferring that responsibility to Ofcom.
	The second issue is the extension of the approach of Clause 131 to freehold covenants. I declare an interest, as I am engaged in a battle with a building society from which I wish to raise money. It is causing difficulty about a covenant that has existed on my freehold house since 1925. Because the house was built on the site of a tennis club, there is a covenant that no alcohol shall be sold on the premises—I can live with that—and that no alcohol shall be consumed on the premises. My solicitor has advised me that it cannot be enforced.
	Having opened my remarks on the matter in that way, I must say that we are not opposed in principle to taking an approach on freehold covenants comparable to that for leasehold agreements in Clause 121. But we are not convinced that any problems are being experienced, and I have not heard any evidence to that effect. The noble Baroness, Lady Buscombe, fairly reflected the answers to her arguments, which were put in another place. As she said, the main point is that we do not think it is right to issue new legislative requirements on such an issue, affecting the law on property, without full consultation on the substance of what we propose. If the analogy of Amendments Nos. 122A to 122D is to be taken seriously, I hope that the noble Baroness will appreciate that point.
	Property law is complicated, and the precise form of any change must be carefully considered in consultation with all the relevant interest groups and professional interests. There is simply no time to deal with that in the context of the Bill. In the absence of convincing evidence of an overwhelming difficulty, I do not think that we should pursue the amendments.
	The noble Baroness, Lady Buscombe, also said that, to an extent, the problem is answered by Amendment No. 329. But there is a difference between consulting on the substance of a provision and consulting on bringing into force a provision that has already been made. In this case, the consultation argument goes against the amendments.

Baroness Buscombe: I thank the Minister for his response. I take his point that perhaps this is an instance where it would be very difficult to seek to change a complex area of law. However, perhaps we could agree that at some point the Government might need to return to the issue if the situation changes such that it becomes more of an overwhelming difficulty, to use the Minister's words. That could happen through, for example, the development of technology or a wish by users to increase their choice of, and access to, different types of services. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: moved Amendment No. 124:
	Page 124, line 8, at end insert—
	"( ) The consent of the Secretary of State is required for the making by OFCOM of an order under this section."

Lord Evans of Temple Guiting: The amendments are in response to concerns raised by the Select Committee on Delegated Powers and Regulatory Reform as to why orders made under Clause 131 were not subject to parliamentary procedure. They will provide that the consent of the Secretary of State will be required for the making by Ofcom of orders under this clause, and that such orders are to be subject to the negative parliamentary procedure. That is consistent with the procedure for orders under Section 96 of the Telecommunications Act 1984, which previously dealt with those matters. I beg to move.

Baroness Buscombe: We welcome these amendments. As the Minister explained, they were tabled in response to concerns raised by the Select Committee on Delegated Powers and Regulatory Reform. It is entirely right that Ofcom's order-making powers under Clause 131 are subject to parliamentary procedure. I understand that the matters were dealt with previously under Section 96 of the Telecommunications Act 1984, and that the procedure therein was negative. We are therefore content with the form of the amendment.

Viscount Falkland: We support the amendment.

On Question, amendment agreed to.

Lord Evans of Temple Guiting: moved Amendment No. 125:
	Page 124, line 9, at end insert—
	"( ) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament."
	On Question, amendment agreed to.
	Clause 131, as amended, agreed to.
	[Amendment No. 125A not moved.]
	Clauses 132 and 133 agreed to.
	Clause 134 [Restriction on imposing information requirements]:

Lord Avebury: moved Amendment No. 126:
	Page 126, line 21, at end insert—
	"( ) In a case where requirement for information under section 132 or 133 includes a requirement for any person to answer a question, make a statement, provide an opinion or otherwise to provide information, whether orally or in writing, such answer, statement, opinion or other provision of information shall not be used by OFCOM in relation to any action to be taken against that person under any of section 34, 38, 93, 109 or 136 without the consent in writing of that person."

Lord Avebury: This amendment would provide that there should be protection against self-incrimination in cases where the request for information under Clauses 132 and 133 may be a preliminary to action under the clauses mentioned and the imposition of penalties. As we have noted several times previously in Committee, Ofcom will have the power to fine companies up to 10 per cent of relevant turnover for breaches of condition and lesser amounts for other types of breach. These penalties are civil but they may be just as severe as, or in some cases more severe than, criminal penalties and are, in effect, akin to criminal penalties.
	Human rights law in relation to the right to a fair trial provided under Article 6 of the ECHR provides such protection in relation to criminal matters. There is a very good precedent for providing similar protection in relation to civil penalties. The Joint Scrutiny Committee considering the draft Bill which became the Financial Services and Markets Act 2000 recommended the insertion of a provision which became Section 174(2) of that Act, preventing the use of compulsory statements obtained under Section 123, as a result of which civil penalties might be imposed for market abuse.
	The circumstances are directly comparable in that the Financial Services Authority has, and the Bill proposes that Ofcom should have the power to impose significant penalties. Parliament accepted the principle that in those circumstances there should be protection against self-incrimination on the lines of Article 6. That is what this amendment sets out to achieve. I beg to move.

Baroness Wilcox: I support the noble Lord, Lord Avebury, on tabling this amendment, which simply asks no more than that this Bill is consistent with principles upheld in the Financial Services Act. As the noble Lord has explained, the amendment seeks to provide protection against self-incrimination in cases where penalties may be imposed. This is standard practice in criminal cases and is in accordance with human rights law; that is, in relation to the right to a fair trial provided for in Article 6 of the European Convention of Human Rights.
	With the Financial Services Act, this House accepted that the protection against self-incrimination also applied to civil cases where the penalties imposed could be significant. As, in this instance, we could be talking about up to 10 per cent of the relevant turnover of a company, it is only appropriate that similar protection is provided.

Lord Evans of Temple Guiting: This amendment appears to be identical to one which was tabled in Committee by the Opposition in another place but was not reached there. It appears to be aimed at giving further protection against self-incrimination to those responding to Ofcom information requests under Clauses 132 and 133. For our part, we consider that the general law, together with the provisions in this group of clauses, will provide an adequate level of such protection and that specific provision of the kind proposed here is both undesirable and unnecessary.
	In our view, there is already sufficient legal protection for the privilege against self-incrimination, which was created under the common law, without the need to include additional express protection on the face of the Bill. As we explained to the Joint Scrutiny Committee in our response to Recommendation 51 on what were then Clauses 98 and 99 in its report on the draft Bill, such provision is not necessary to ensure that the privileges in question are fully protected. We take the view that where a proposed safeguard is co-extensive with the protection guaranteed by the Human Rights Act, the safeguard need not be repeated in a subsequent Bill. The Human Rights Act applies to all legislation. It would be confusing and superfluous to draft on the basis that its provisions do not apply to a particular Bill or that they need repetition in order to take effect.
	As we further explained to the Joint Committee on Human Rights, in response to its first report, the Government do not believe that it would be sensible to adopt a practice of drafting Bills in a way that expressly limits all enabling powers, or other executive powers, so that they may not be exercised incompatibly. That limitation is achieved unambiguously by Section 6 of the Human Rights Act, so that an act done under the purported authority of an Act of Parliament that enables, but does not require it, will be unlawful. If Parliament wishes a decision-maker to act incompatibly, the Bill will have to make that intention very clear. But where compatibility is intended, we believe that it is redundant to say so.
	Given the further observations of the Joint Committee on Human Rights in paragraph 44 of its fourth report, in which the Committee suggests that it is good practice to ensure that procedural and other safeguards in this area are expressly provided for on the face of the Bill, we have reconsidered this matter. But, after due consideration, we continue to be of the view, for the reasons explained, that it is neither necessary nor appropriate to make express provision for such matters in this case.
	The information provisions in the Bill need to strike a fair balance between the need, on the one hand, to ensure that Ofcom has the information it requires in order to monitor and if necessary enforce compliance and for related purposes and, on the other hand, the need to protect human rights. We believe that the provisions, as drafted, achieve this balance and furthermore they are compatible with the European Convention on Human Rights.
	Before I ask the noble Lords to withdraw this amendment, I turn to one point made by the noble Lord, Lord Avebury. Since the Human Rights Act 1998 came fully into force on 2nd October 2000, it is no longer necessary to include express protection for the privilege against self-incrimination in order to ensure that that privilege is properly protected. Having said that, I would ask the noble Lords to withdraw this amendment.

Lord Avebury: I am not absolutely sure whether the reply from the noble Lord means that, because the Financial Services and Markets Act 2000 was passed before the Human Rights Act came into force, it was necessary to insert a provision of this kind in that legislation, but it is not now because it is taken care of by the Human Rights Act. The noble Lord is nodding, so I suppose that is what he means. If the Financial Services and Markets Act had been in front of your Lordships now, we would not have been contemplating the insertion of such a provision.
	Moreover, am I correct in thinking that what the noble Lord has told Members of the Committee is that if a person makes a statement under Clauses 132 or 133, it cannot be used for any of the purposes mentioned in our amendment, even though it would, in effect, lie on the table? It could not be used in settling any civil penalties which might be imposed under the powers that Ofcom possesses, but would have to be disregarded because, as the noble Lord explained, the powers against self-incrimination are already contained in the Human Rights Act. If that is the case, I am very happy to withdraw the amendment. Of course, we shall be able to reassure those who pointed this matter out to us, that the protection they were seeking with this amendment is already achieved by some other means. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 134 agreed to.
	Clauses 135 to 147 agreed to.
	Clause 148 [Interpretation of Chapter 1]:
	[Amendment No. 127 not moved.]

Lord Avebury: moved Amendment No. 128:
	Page 135, line 41, after "the" insert "initial"

Lord Avebury: The Government have amended the Bill in order to narrow the definition of electronic communications apparatus from that originally used in the Bill. They were apparently afraid that the definition used could include many items not typically thought of as terminal apparatus, such as ducts and poles, and that that could have had unintended and distorting effects. We are not sure whether the Government intended to narrow the definition to that of terminal apparatus—the last piece of apparatus at the end of a network, such as a telephone, fax or computer terminal. If so, the clause, as now drafted, uses a different definition of apparatus than that used in Annex A of British Telecom's licence—apparatus by means of which messages are initially transmitted and ultimately received.
	The definition in Clause 148 appears to include intermediate apparatus such as switches and Internet servers and other equipment used by the hundreds of ISPs in the UK. This has the potential to extend regulation into competitive areas that to date have been working fine under market forces without unnecessary intervention. Consistent with the principle of keeping regulation to the minimum necessary, the proposed amendment would limit what may be regulated in a clear and unambiguous way using time-tested terminology understood by the industry and the regulators alike. I beg to move.

Baroness Wilcox: I support the amendment. As the words I have in front of me are almost identical to the words used by the noble Lord, Lord Avebury, I shall leave it at that.

Lord McIntosh of Haringey: BT sends its briefings to more than one person, does it not? I recognise so many of these briefings, whether they are from Sky, BT or mobile phone operators, that I refrain from commenting all the time on them.
	The directives we are implementing define the provision of electronic communications networks and services. Apparatus is a different matter. We are free to regulate and define apparatus as we think fit. We define "significant market power" apparatus in Clause 148 simply to provide continued protection for the benefit of those consumers who still rent handsets or other equipment from their communications suppliers. Fewer and fewer people do so, but some people do and they should still be protected. The reference to "significant market power" appears because we are proposing that in future Ofcom will be able to impose this kind of obligation only on persons found to have a significant market power in a relevant market.
	In deciding to carry forward this consumer protection related to apparatus, which is not required by the directive but which has been a feature of UK telecoms licences since they were first issued in 1984, we believe that it is right to modernise the framework in this way. Of course, nearly all rented apparatus is rented from BT, for historical reasons if no other.
	Amendments Nos. 128 and 129 seek to restrict the scope of the definition of electronic communications apparatus for the purpose of regulating SMP apparatus so that only the first and last parts of the communications chain would be caught. We understand that the concern behind this is that the definition as it stands would catch apparatus such as switches and Internet servers and other equipment used by service providers, including Internet service providers. In other words, it would catch network equipment.
	We agree that it is not necessary or appropriate for that kind of equipment to be caught by the definition but we do not believe that there is a real problem. In the context of this definition, "sending" and "receiving" have to be read as meaning the first act of sending the signal and the final act of receiving it. We do not think that there will be any confusion with those kinds of equipment which occur in the middle of the chain of transmission and which could more properly be said to be "conveying" a signal than sending or receiving it. So we do not believe that the amendments will make any difference.

Lord Avebury: From the Minister's reply it would appear that he also received the BT note. It is well and good that he should have done so. Obviously this is an important point that BT has taken up with noble Lords and it has been the subject of a useful discussion. If what the Minister said is correct, the matter can be discussed between the department and BT and it can be given the reassurances that it seeks—that is, that it was not intended to catch apparatus other than that which it calls "initial sending" and "ultimate receiving" apparatus; and that the definition in the Bill will deal only with apparatus of that kind even though we still believe that there may be some advantage in using the terminology in the BT licence because of its well understood provenance.
	If the Minister is certain about the legal meaning of the words in the definition as it stands, and we can satisfy those outside the House that that is the case, we shall not need to pursue this issue at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 129 not moved.]
	Clause 148 agreed to.
	Clauses 149 and 150 agreed to.
	Clause 151 [Duties of OFCOM when carrying out spectrum functions]:

Lord Avebury: moved Amendment No. 130:
	Page 140, line 30, after "economic" insert ", social, cultural"

Lord Avebury: This is the first of a number of amendments dealing with spectrum use, where Ofcom has important functions such as the provision of advice and services for the purpose of securing compliance with the UK's international obligations.
	Ofcom's general duties under Clause 3 require it to secure the provision of a wide range of TV and radio services appealing to a variety of tastes and interests—so the spectrum duties are not limited by economic considerations—and the wording of Clause 151(2)(b) refers vaguely to "other benefits". We believe that services for minority groups and the important concept of the "access for all" development of broadband communications should be acknowledged by adding the words "social, cultural" to make clear what these benefits are.
	In granting recognised spectrum access under Clause 156, Ofcom could indirectly have considerable power over the content of television services, and potentially over the cost of satellite services to end users, which in turn would adversely affect plans to develop broadband connectivity in remote and rural areas.
	The wording proposed reflects that of the International Covenant on Economic, Social and Cultural Rights, to which the UK is a party and which is therefore one of the international obligations that Ofcom's advice and services are meant to secure. Article 15 of the convenant,
	"recognizes the right of everyone . . . to take part in cultural life",
	and requires state parties to take the steps,
	"necessary for the conservation, the development and the diffusion of science and culture".
	Therefore broadcasting and access to the Internet, the most important means of diffusion, must be regulated in a manner that promotes science and culture and that is not purely concerned with entertainment.
	In the last report by the UK on implementation of the covenant there is a factual summary of what is provided on TV and radio and how many people have access to the Internet, but nothing about government policy on how they intend to see that electronic communications are used for the diffusion of culture across the range of communities that make up the United Kingdom. The amendment would at least give Ofcom a duty that parallels the objectives of the convenant and help to ensure that we have positive things to say about the use of the spectrum in pursuit of ICESCR objectives the next time we report.
	As to Amendment No. 131, subsection (2) gives Ofcom the duty to have regard to a number of issues outlined in paragraphs (a) to (d) and then subsection (3) states that it may disregard such of the matters mentioned in the preceding subsections as appear to Ofcom to be matters to which it is not required to have regard, apart from Clause 151. This is not elucidated in the Explanatory Notes but it would appear to give sweeping powers to Ofcom to disregard important factors that are key in any decision about RSA.
	So far as paragraph (b) is concerned, there may be circumstances in which some or all of the factors in subsection (2) have no application, but Ofcom has to have regard to them in order to conclude that they are not relevant. I beg to move.

Lord McIntosh of Haringey: We do indeed come to spectrum, which is the "techie" subject of all "techie" subjects. The two amendments concern Ofcom's duties in relation to the management of the spectrum.
	I agree that radio spectrum is at the heart of the communications revolution. Its effective management is crucial to fostering a competitive and dynamic—I am sorry. I beg the Committee's pardon. I "mispeak" myself, which I believe is the correct phrase, but it is right that we should debate Ofcom's duties.
	Amendment No. 130 concerns the insertion of the words "social, cultural". The noble Lord, Lord Avebury, gave illuminating examples. We agree that it is necessary to take into account non-economic benefits of essential public and safety of life services, defence, cultural and scientific pursuits and a range of social and educational applications. These transcend economics and cannot easily be valued in monetary terms. We would all be the poorer if Ofcom focused exclusively on economic benefits.
	The diversity of spectrum use is fully reflected in the Bill. Clause 3 makes clear that Ofcom should manage the spectrum in the interests of all those who wish to use it. This includes not just commercial enterprises but also those with cultural, educational, social or scientific aims. Clause 3 also requires Ofcom, in exercising its functions, to pursue the cultural objective of securing the availability of a wide range of high quality programmes.
	Turning to Clause 151, subsection (2)(b) requires Ofcom to have regard to the desirability of promoting not just economic but also other benefits. There is no need to add a reference to social or cultural benefits. Indeed, if one did, one would be in danger of excluding other forms of non-economic benefit, such as scientific benefits, and of giving the impression that they were somehow second class. The provision for other benefits combined with the great specificity of Clause 3, makes the amendment unnecessary.
	I understand the point made on Amendment No. 131 about the need for spectrum management duties to be harmonised and consistent. Indeed, we included Clause 151 in the Bill with that in mind. That was in positive response to a recommendation of the Joint Scrutiny Committee chaired by my noble friend Lord Puttnam.
	The clause applies the considerations currently contained in Section 2 of the Wireless Telegraphy Act 1998 in relation to spectrum pricing, with the addition of the non-economic benefits we have just discussed, to all Ofcom's spectrum management functions. I hope that the Committee will let me explain the reason for including subsection (3).
	Spectrum management involves a wide range of activities from international agreements on spectrum use to domestic television interference. The factors listed in subsection (3) had their origin in the Wireless Telegraphy Act 1998, where they were included to provide a safeguard against the use of incentive pricing to raise revenue. They encapsulate the specific considerations that were considered necessary for setting licence fees. Not all of them are equally relevant to Ofcom's other spectrum management functions, however.
	For example, the objectives of an auction may include other matters such as quality of service, speed of roll-out or geographical coverage. Furthermore, in an auction, the fees paid will be determined by the bidders, not imposed by the regulator, so the context is very different from that of administrative incentive pricing under Section 2 of the 1998 Act. Nor is it easy to relate the Section 2 factors to Ofcom's function of investigating and assisting with interference.
	Subsection (3) simply provides that Ofcom may disregard such of the factors that do not appear relevant to a particular function. But this is constrained and it is important to appreciate that it does not extend to a factor that Ofcom is required to consider by another provision or to setting fees for licences or recognised spectrum access. Subsection (3) does not weaken the important safeguard that fees should reflect spectrum management considerations.
	Clause 151 is intended to bring the elements of consistency and coherence that the Joint Committee recommended while giving Ofcom a necessary degree of flexibility in exercising the wide range of spectrum management functions.
	Subsection (3) makes explicit that Ofcom may exercise a sensible degree of discretion to set aside factors that do not apply. I hope that that explanation will be sufficient to persuade the noble Lord, Lord Avebury, not to press the amendment.

Lord Avebury: I accept, I think, the Minister's argument that Amendment No. 130 may not be necessary because of the general duties that are imposed on Ofcom under Clause 3, which reflect the objectives which I sought to bring into the clause we are discussing. The only point I make about that is that in other parts of the Bill the Government have been careful to ensure consistency of terminology and wording between one section and another and between different subsections within the same clause. I shall need to reflect whether it would be sensible to pursue the matter to try to insist on the inclusion of the relevant words or whether I am satisfied on the basis of the advice available to me that the general duties of Ofcom make it unnecessary to repeat them in this clause.
	With regard to Amendment No. 131, I accept what the noble Lord said in explanation. I am perfectly satisfied that I do not need to pursue the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 131 not moved.]
	Clause 151 agreed to.
	Clause 152 agreed to.
	Clause 153 [Directions with respect to the radio spectrum]:

Lord Avebury: moved Amendment No. 132:
	Page 141, line 33, leave out "3A" and insert "3"

Lord Avebury: We now come to the controversial process whereby parts of the radio spectrum, particularly those used by satellites, are to be subject to grants of what is called "recognised spectrum access" under a procedure which is set out in Schedule 5. As the Minister is aware, there is a great deal of opposition to the idea from sections of industry, notably from the organisation Intellect, which represents over 1,000 companies in the information technology, telecommunications and electronics industries based in the UK, whose use of the radio spectrum generates some £12 billion to 15 billion worth of business. They employ collectively some 400,000 people. They say that a high value for RSA would mean that satellite operators, and others in the future, would not take up Ofcom's proposed grants, but they particularly disliked the threat that if operators did not sign up, the satellite downlinks would be subject to interference.
	Once the concept of RSA is established, they believe that it could be extended to licence-free areas of the spectrum such as those at present used by 802.11, stifling development in those areas. They foresee that a satellite operator looking to provide a European service might have to pay for 25 RSAs on each of the uplinks from EU member states after the next enlargement in 2004, and as many as 40 in the medium term future as more eastern states join, and if they all adopt the policy of RSA in the form that it takes in the Bill.
	I know that the Minister in another place, Stephen Timms, was due to meet representatives of the European satellite industry on 8th April, and it would be useful to know whether they succeeded in persuading the Government to shift from their present position on the matter. If the Minister would like to respond in writing to save time in Committee, that would be fine because my crystal ball tells me that the Government will not accept these amendments and that we shall inevitably return to the subject on Report. Very briefly, what we are aiming to do in Amendments Nos. 132 and 136 is to knock out the auctions for grants of RSA; and in Amendments Nos. 134 and 135 we substitute, first, a requirement that Ofcom determine that there is a spectrum management need, and, secondly, that when it has done that, RSA is granted at the cost of administration.
	On Amendments Nos. 134 and 135, the Government said in their response to the Trade and Industry Select Committee report:
	"In particular, the Government accepts that RSA should not be applied, and that fees should not exceed cost recovery, in the absence of a spectrum management need".
	The amendments seek to mirror that commitment back at the Government. I beg to move.

Baroness Buscombe: I wish to speak to the remaining amendments in the group; that is, Amendments Nos. 134A to 134E, 135, 136, 136A to 136F, 138A to 138D, 140A and 141A.
	I shall start with Amendment No. 134A. Recognised spectrum access introduces a system enabling charges to be made for satellite downlinks for the first time. There has been extensive consultation by Professor Martin Cave, the Government and the Radiocommunications Agency on the subject. Despite the views opposing RSA consistently expressed by satellite operators and broadcasters, and reflected in amendments tabled in Committee in another place, the Government have retained the proposal for RSA.
	In so doing, the Government appear to take refuge in the fact that RSA will be "voluntary"; that there will be further consultation by Ofcom on implementation and pricing methodology; and that Ofcom would have to consider whether RSA was appropriate having regard to all its duties. The Bill contains no such commitment. Ofcom could simply decide to proceed with the issue of RSA. Accordingly, Amendment No. 134A seeks to amend Clause 156(1) to reflect those commitments.
	That issue was raised in Committee in another place. The Minister there explained that the principles sought were already firmly embedded in the Bill, by virtue of the fact that Clause 156 refers to Clause 396, which includes a requirement to consult and take account of the representations received. However, that reassurance has provided little comfort to those who stand to be regulated. I hope that the noble Lord, Lord McIntosh, might feel able to move further in that regard.
	Clause 396 relates only to Ofcom's powers to make regulations, orders and schemes, requiring consultation on them prior to their being put to Parliament. I recognise that consultation is required in that instance. However, it is very much at the 11th hour. The real concern that remains is the absence of any provision for extensive and detailed consultation on fundamental RSA principles, which should take place well before any statutory instruments as to their precise mode of implementation come to be drawn up.
	I would like the Minister to explain why the Government appear to be hiding behind such inadequate provisions for consultation. On what has clearly become a sensitive issue for industry, would it not be far better to place a commitment to consult on the principle of RSA and its appropriateness to specified circumstances, as we propose, rather than to rely on limited provisions elsewhere in the Bill?
	Amendment No. 134B concerns Ofcom's ability to impose unrelated conditions in Clause 156(5), (6) and (7). Although it may be legitimate to provide that the protection afforded by RSA applies for so long as the holder keeps his signal within certain technical parameters, it is totally unacceptable to seek to use the grant of RSA to censor the content of what is broadcast over the satellite downlink. Clause 156(2) gives Ofcom power to impose conditions for the former purpose. However, Clause 156(5) seems to give Ofcom very wide powers to decide what should or should not be broadcast on the signal that is given RSA protection. There are no criteria to which Ofcom should have regard in setting the conditions.
	I would like to go back for a moment to the alleged purpose of RSA, which is to protect the holder against interference to his satellite signal. There can be no circumstances in which positive conditions are imposed on the RSA holder relating to his signal or what he broadcasts on it. His protection may be limited if he does not stay within the boundaries set out by Clause 156(2), but that should be the extent of it. The power in Clause 156(5) is irrelevant, unnecessary and disproportionate in the context of RSA. Our amendment seeks to delete it and the connected clauses that follow.
	"Grandfathering" commitments from government for terrestrial licensees should also apply to existing satellite transponder leases. In their response to the review of radio spectrum management, the Government indicated that spectrum trading and pricing as regards terrestrial broadcasters is not to take effect while they have existing licences which did not anticipate such pricing. For example, paragraph 8.23 of the response states:
	"Digital broadcasts of ITV and Channel 4 are carried on a multiplex operated by Digital 3&4 Ltd, while digital broadcasts of S4C and Channel 5 are carried on a multiplex operated by S4C Digital Networks Ltd (SDN). The first 12-year term of these multiplex licences expires in 2010. The Government is committed to not charging under the Broadcasting Act 1996 until this point".
	Paragraph 8.24 makes a similar commitment with regard to the BBC's own multiplex, stating that,
	"the Government believes that it is appropriate to introduce spectrum pricing for the BBC multiplex on the same basis as the other multiplexes awarded at the same time—from 2010, 12 years after the award of that multiplex".
	With regard to the three further digital television multiplexes, paragraph 8.26 makes another similar commitment, stating that,
	"any operator awarded a digital television multiplex licence under the Broadcasting Act 1996 between May 2002 and the date of this publication will not be subject to administrative pricing for the use of spectrum to support that multiplex before the renewal of that licence in 2014".
	There appears to be a strong case, therefore, for applying the grandfathering proposals to pre-existing satellite transponder agreements, which have not factored in the possibility of RSA. The Minister in another place went to some lengths to seek to justify the proposal for the RSA regime and its proposed charging mechanism, based on an argument that to do otherwise would be discriminatory between satellite broadcasters on the one hand and terrestrial broadcasters on the other.
	I would be grateful if the noble Lord, Lord McIntosh, could explain the Government's policy on grandfathering. Would he not agree that, in order for the provisions to be fair and non-discriminatory between satellite and terrestrial broadcasters, similar commitments in favour of satellite broadcasters should be made?
	It would seem perverse not to do so. I am sure that the Minister will recognise that many new satellite broadcasters have undertaken significant risk and investment to enter the United Kingdom market, encouraged to an extent by the policy framework to date. They have increased competition and expanded viewer choice in line with the Government's aims. Consider the contributions of 24-hour news channels to coverage of the Iraq war; of the many documentary channels on offer; of new arts and music services; of channels for ethnic minority audiences; and of new forms of public service, such as the Community Channel, the first UK-wide channel dedicated entirely to the voluntary sector.
	Those providers are also contributing to another UK policy objective—digital switchover—by providing services that have already incentivised millions of homes to acquire digital television. Indeed, they have helped to make the UK a world leader in that area. I hope that the Government will keep that in mind, not only in respect of grandfathering, but in the context of their RSA policy overall.
	I move on to Amendments Nos. 134C, 134D and 134E, which relate to Ofcom's ability to modify or revoke a grant of RSA under Schedule 5. Once an RSA is granted, Ofcom may, by virtue of paragraph 5 of Schedule 5, revoke a grant of an RSA, or modify the restrictions or conditions to which a grant is subject. There appears to be no constraint on the grounds on which Ofcom may modify or revoke a grant, other than when it includes in an RSA the self-denying ordinances in paragraph 7. Paragraph 6 states simply that Ofcom must state the reasons for its proposal to modify or revoke the grant of an RSA.
	I believe it to be contrary to the legitimate rights of an RSA holder for Ofcom to have such unfettered power to amend or remove, albeit after the RSA holder has been able to make representations, an RSA during the period for which it has been granted. That raises the question of whether there would be any value at all in obtaining an RSA. It is supposed to give the holder protection against the possibility that terrestrial frequencies will be licensed during the term of the RSA that would interfere with his signal.
	If Ofcom is able simply to revoke a grant of RSA, however, no such protection is given at all. The holder knows he has protection only until such time as Ofcom wishes to revoke it because, for example, it wishes to license terrestrial frequencies which may interfere with the satellite signal of the RSA holder. That means that the RSA holder is in no better position than he would have been had he not taken out an RSA at all. Once granted, RSA should not be revocable and should last its full term. My amendments seek to ensure that that is the case.
	The Minister in another place indicated that, because the communications sector is subject to rapid and unpredictable change, Ofcom needs,
	"sufficient powers to modify or revoke RSA when necessary and after due process".
	Few examples were given, however, as to precisely what those changes might be. One was,
	"the need for spectrum refarming".
	Another was,
	"problems of harmful interference arise due to some unforeseen problem—which may happen despite the best efforts of the spectrum manager".—[Official Report, Commons Standing Committee E, 9/1/03; col. 392.]
	These are hardly convincing explanations for what are draconian measures to interfere in something which has, after all, been granted to provide security and peace of mind.
	I should be grateful if the Minister could provide some further and, it is to be hoped, more concrete examples of the circumstances in which he envisages Ofcom would use these powers to amend or remove an RSA which would justify the erosion or RSA holders' rights. The Minister should recognise that the removal of RSA protections could sound the death-knell to a satellite broadcaster whose signal becomes unreceivable due to interference.
	I turn to the amendments relating to Clause 158(3). It provides for the auctioning of RSAs. There are some outstanding questions on the proposal which we believe the Government failed to answer adequately in another place. I hope that the Minister will be in a position to remedy this today.
	In another place, we tabled amendments seeking to delete the proposals for the auctioning of RSAs, which is what today's amendments also seek to do. The argument for that is simple. While it makes sense to auction an actual scarce frequency, it does not make sense to auction an RSA which is merely protection against a particular terrestrial frequency from being deployed to create interference. Surely if there is a risk of interference from a number of satellite broadcasters from the deployment of a terrestrial fixed link, all of them should be able to obtain protection against interference and not just one lucky winner.
	I turn to Amendments Nos. 136A, 136B, 136C, 136D, 136E and 136F. They relate to Ofcom's ability to limit spectrum use in Clause 161. Clause 161 provides that Ofcom may specify frequencies for which it will grant or make available only a limited number of RSAs or specify uses for which, on specified frequencies, Ofcom will grant or make available only a limited number of RSAs. In effect, these provisions enable Ofcom to ration the protection which is to be afforded by RSA and to impose restrictions on the use of satellite frequencies which are already subject to international co-ordination and agreement.
	In another place, amendments were tabled which sought to delete these provisions. The amendments are retabled here. It was argued, quite rightly, that if RSAs are to be made available, they must be available to all satellite operators and broadcasters. Why should Ofcom be able to limit the number of RSAs available and, indeed, how would it be able to do so in practice? After all, RSAs are simply intended to enable satellite broadcasters to guard against terrestrial interference, and therefore the number of RSAs granted should be determined wholly by the demand for them and nothing else.
	The Government's reasons for these decisions are difficult to understand. In another place, the Minister indicated that the removal of RSAs from Clause 161 would lead to a great loss of transparency and would mean that Ofcom would not be able to follow the necessary procedure if it intends to limit the use that may be made of spectrum. That answer clearly misses the point. It is our contention that no limitation on RSA should ever exist, so whether or not Ofcom can follow the necessary procedures provided for in Clause 161 is irrelevant.
	I would very much welcome some further explanation from the Minister on this point. For example, in what circumstances does he envisage that Ofcom might limit the number of RSAs or specify uses for which, on specified frequencies, Ofcom will grant or make available only a limited number of RSAs? So far, we have heard no explanation for this and no convincing explanation for resisting the amendment.
	Amendments Nos. 138A, 138B, 138C and 138D, Amendment No. 140A and Amendment No. 141A relate to spectrum trading in Clause 165. We are all agreed that RSAs should be capable of being transferred from one person to another. However, concerns were raised previously in another place that Clause 165 would allow Ofcom to alter the condition of an RSA, require further payments to be made or financial security to be given, before giving its consent to any transfer. Such provisions, it is feared, could alter fundamentally the rights and value of the RSA originally granted and is inconsistent with the underlying principles of property and human rights.
	It has the effect that on a sub-licensing of transponder capacity, it will not be possible to transfer any of the associated RSA protection. This will create problems for secondary trading and transponder capacity, which I understand the European Commission has been keen to see flourish. My amendments tabled for debate today seek to address that concern again. They do not remove RSAs from the trading provisions, but reduce significantly the ability of Ofcom to alter conditions, require further payment, or to require its consent to be given. These are, I believe, fair and reasonable amendments which the Government have yet to provide a clear reason for opposing.
	In response to the same amendments tabled in another place, the Minister simply said that they would reduce the scope for trading. But how is that the case? It will, indeed, be the case that the scope for interfering in the rights of RSA holders will be reduced, but I do not see how the scope for trading will be reduced. It would be helpful if the Minister could explain why the Government believe this to be the case. Do they agree with the concerns that I have outlined with regard to the secondary market in transponder capacity?

Lord McIntosh of Haringey: Clearly, this is the most important single subject in the whole of Part 2 and it well deserves the detailed attention which is being given by the noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe. I am grateful to both of them for it.
	The need for recognised spectrum access derives from the fact that some frequency bands are shared by licence services and services that, for whatever reason, cannot be licensed; that is, terrestrial fixed links used in telecommunications infrastructure and satellite downlinks. In that particular example, it is necessary to limit the deployment of fixed links in order to protect satellite service from interference. Therefore, giving satellites exclusive access to frequencies constrains other services.
	That is the problem with which RSA seeks to deal. RSA will enable Ofcom to adopt a more even-handed approach to managing spectrum in these cases. The noble Baroness, Lady Buscombe, referred to the independent report on spectrum management by Professor Martin Cave. He recommended that RSAs should be used because it will enable Ofcom to treat different groups of spectrum users more fairly and apply spectrum pricing and trading to services that, for whatever reason, cannot be licensed. I want to make it clear from the beginning that RSA is not a revenue-raising tool but a way of extending sound spectrum management practices where licensing, or lack of licensing, is a problem.
	We have said that RSA will not be compulsory and that has been questioned in debate. It is only not compulsory in the sense that if one does not apply for recognised spectrum access, there is a price to pay in terms of risk of interference in particular. That is a commercial judgment which has to be made by operators. They have to decide whether the benefits of enhanced security and quality of spectrum given by RSA are worth the fees that Ofcom charge.
	I cannot determine in advance how different operators will make that judgment and I do not believe that Ofcom can either. Clearly, it will be a trading situation. Fees will be determined which will at some stage match willing buyers to willing sellers. This is not a matter which can be laid down in regulations, still less on the face of the Bill. Those who choose not to take advantage of RSA and not to pay the fees will be free to continue to transmit to the United Kingdom without RSA. They will be legitimate spectrum users and they will continue to be protected from interference from illegal sources. That option might be attractive to them if, for example, they are aiming their services at another company but spilling over into the United Kingdom, which is only a marginal market for them. But if they want to avail themselves of the privilege of exclusive access to spectrum, surely, as a basic principle, it is fair and reasonable that they should pay for that advantage on the same basis as licence users.

Lord Avebury: Is the Minister saying that that would never occur? Is he saying that if an operator declines to negotiate for RSA that that frequency would be offered to another operator by Ofcom?

Lord McIntosh of Haringey: No, I am saying that an operator will be protected from illegal use, but there will be risks of security and quality of transmission. Clearly, spectrum is a continuum; it is not a series of discrete positions. That is the whole meaning of the word "spectrum".
	Inevitably the powers in the Bill are enabling powers. It will be up to Ofcom to decide in which frequency bands RSA should apply, the timing of its introduction and the level of charges. We have not taken decisions on those matters. The noble Baroness, Lady Buscombe, and the noble Lord, Lord Avebury, commented on consultation but I believe that they recognise, as required by Clause 396, that there will be full and detailed consultation before decisions are reached. That means that in responding to the debate I cannot give answers on matters that have not yet been decided.
	The amendments relate to the way in which RSA is introduced, charged for and regulated. In so far as they are intended to probe our intentions that is fine. I am happy to give such assurances as I can, but some of the issues, as I have made clear, cannot yet be determined.
	I now turn to the detailed amendments. Amendment No. 134 would restrict the introduction of RSA to where Ofcom sees a spectrum management need. Amendment No. 134A would require Ofcom to consult all interested parties before making regulations to apply RSA on whether they are appropriate and proportionate.
	I have no problem with the principle underlying either of those amendments, but they are not necessary. The introduction of RSA will be subject to the duty in Clause 151, which requires Ofcom to have regard in particular to specified spectrum management considerations. As I have already said in response to earlier amendments, it is Ofcom's duty to regulate in a way that is proportionate and appropriate and this will apply to RSA as well.
	Ofcom will also be required by Clause 396 to consult and to take representations into account before making the regulations. No decisions have yet been taken on the frequency bands. That will be a matter for Ofcom. But the Bill already requires decisions on RSA to be based on spectrum management considerations and subject to consultation.
	Amendments Nos. 132 and 136 would remove Ofcom's power to auction RSA. Amendment No. 135 would restrict RSA fees to cost recovery. The common theme of these three amendments is that RSA fees should not exceed the cost of managing the spectrum. That is what the Trade and Industry Select Committee of the House of Commons said in its report. We have already set out our response to that report. There has been widespread support in principle both for auctions and for spectrum pricing. The Trade and Industry Select Committee endorsed those principles for spectrum licences. Why should we distinguish between licences and the spectrum that cannot be licensed?
	Whether for RSA or for licences, charging an economic fee gives incentives to use spectrum more efficiently. Users can take economically rational decisions based on their knowledge of the market and an assessment of the value of the spectrum. That will open up more opportunities for new services to benefit consumers and the UK economy because of more efficient use of the spectrum. Professor Cave endorsed spectrum pricing and recommended that opportunity cost pricing should be applied to satellite systems' use of spectrum where such use shares with, and constrains, the deployment of UK-based terrestrial services.
	Auctions have advantages. They have transparency and economic efficiency and ensure that the licence or RSA in question passes to the person who attaches the highest value to it. But they are not suitable in all cases. They need to be applied selectively. There is provision for administrative prices where that would provide more efficient use of the finite spectrum resource. Again, the decisions on the use of auctions will be a matter for Ofcom. I cannot predict what use Ofcom will make of auctions, but it will be required to act in accordance with spectrum duty in Clause 151 and to consult as required by Clause 396.
	I know that some satellite operators have been concerned about the level of administrative incentive pricing fees that may be charged. Let me give the assurance that they are looking for. The charges will be no higher than necessary for spectrum management purposes. Clause 151 gives that assurance statutory backing.
	I hope it is clear that we take the concerns expressed in this debate and by the satellite industry seriously. Ofcom will do so as well. The noble Baroness, Lady Buscombe, raised an interesting issue about the balance between satellite and terrestrial, and particularly about grandfather rights. The timing of the introduction of RSA will be a matter for Ofcom but I am sure that Ofcom will take account of what the noble Baroness, Lady Buscombe, has said about grandfather rights. I have some sympathy with the argument that she used, but it is not a matter to be put on the face of the Bill.
	Amendments Nos. 134B to 134E, 136A to 136F, 138A to 138D, 140A and 141A relate to the way in which Ofcom will grant and regulate RSA. It is entirely understandable that those who may be granted RSA should look for as little restriction as possible on the spectrum, maximum security of tenure and freedom of trade. But the amendments would reduce Ofcom's flexibility. They dilute or remove the powers to manage spectrum efficiently. They would not be in the best interests of achieving optimum use of the radio spectrum.
	The communications sector is undergoing rapid and unpredictable change and we should not tie Ofcom's hands. So we entrust Ofcom with broad enabling powers, including on RSA so that it can react to changes in an uncertain world. But the powers are balanced by duties and as to how they should be exercised. That applies to overall objectives and to matters to be taken into account in Clause 3 and to the avoidance of unnecessary burdens in Clause 6. As I have said over and over again, there are obligations to have consultation and there are extensive rights of appeal.
	In addition, where spectrum is concerned there are additional duties in Clause 151 stipulating matters to which Ofcom must have regard, including availability of spectrum, present and expected future demand, efficient management and use of spectrum, economic and other benefits, innovation and competition.
	Amendments Nos. 134B and 134C would effectively remove Ofcom's power to make the grant of RSA subject to terms and conditions. It is not possible to anticipate what terms and conditions they may find it necessary to impose. They may need, for example, to impose conditions on RSA that technical criteria equipment should meet to obtain a desired quality of service, or to deal with extraneous symptoms that may be received, or to deal with restrictions on the frequency limits or on geographical boundaries. Ofcom has to have that power to impose conditions and restrictions in order to manage the spectrum.
	Amendments Nos. 134D and 134E relate to revocation and modification. Ofcom may have the need to revoke or to modify RSA for a number of reasons but it does not need to be limited to those listed in Amendment No. 134D; for example it may be in the best interests of consumers to free up spectrum for a new service to be established. Of course, they have to act reasonably by giving a suitable period of notice, and decisions on revocation or modification of RSA will be subject to the full appeal procedure in Clauses 189 to 193 including the competition appeal tribunal on the merits of the decision.
	The noble Baroness, Lady Buscombe, asked specifically about security of tenure. Ofcom will be required to act reasonably while modifying or revoking RSA and the answer is that there is the same regime for RSA as there is for licences. There is that protection in both cases. Ofcom will also be able to offer greater security by fettering its discretion under paragraph 7 of Schedule 5. RSA holders have the assurance that modification or revocation of RSA will be subject to full rights of appeal.
	Amendments Nos. 136A to 136F would remove references to RSA from Clause 161. The purpose of the amendments may be to probe how Ofcom might use its discretion to impose limitations. Although it is difficult to predict how it could be used, we can see how it is needed. Radio spectrum is a scarce resource. In some frequency bands, the need to protect one service from interference can constrain the deployment of other services in bands shared by satellite downlinks and terrestrial point-to-point fixed links. It is necessary to limit the grant of RSA, to prevent other services from being unduly restricted.
	The remaining amendments in the group—Amendments Nos. 138A to 138D, Amendment No. 140A and Amendment No. 141A—relate to the regulation of secondary trading. The amendments would dilute Ofcom's powers and would prevent Ofcom from requiring consent or approval in advance for transfers of RSA and from prohibiting or imposing conditions on transfers of RSA. That would not be helpful. Again, the important point is to maintain comparability between licences and RSA.
	I am conscious that I have set out what the amendments would do and why they are undesirable. I am also conscious that there was a raft of questions, asked by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Avebury, that I did not answer fully. I shall write them a very long letter indeed between now and Report, to deal with all the points. However, the Government must resist the amendments.

Baroness Buscombe: I am grateful to the Minister for his full response to the amendments. I would appreciate it if he were able to write to me concerning several questions that I raised.
	I am also grateful for the Minister's suggestion that Ofcom should take account of what I said about grandfathering rights. I was disappointed by his response on some of the issues. I kept finding myself repeating the word "interfering" in connection with the clauses. A balance must be struck. When I have read in Hansard what the Minister said and when I have considered the contents of the Minister's letter, we will decide whether to take the matters further.

Lord Avebury: I do not know whether it is becoming a habit, but we seem to refer frequently to Professor Cave in our deliberations. His words appear to have taken on the status of holy writ. I remind the Minister—if he has not already thought of it—of the way in which we accepted for centuries, if not millennia, that Aristotle was right. The spell was broken when, I think, Bacon thought to dispute Aristotle's assertion about the number of teeth in a horse's mouth by counting them. He found that Aristotle was wrong.
	It may be that Professor Cave is not always right. We should not automatically assume, in proceedings in your Lordships' House, that what he has said is laid down as holy writ for all time.

Lord McIntosh of Haringey: He knows a lot more than I do.

Lord Avebury: He probably knows a lot more than I do, as well. In fact, I am sure that he does. However, the combined wisdom of many people outside the House is brought to bear on our deliberations, as the noble Lord said earlier with regard to BT. We obtain advice from various sources and from the industries that will be affected by the provisions in particular. The decisions that we make are of immense importance to vast industries and many hundreds of thousands of workers.
	I welcome the noble Lord's undertaking to write about the matters covered in the debate that have not already been dealt with in his speech. We should take that assurance as satisfactory, as far as it goes, but without guaranteeing that, as the noble Baroness, Lady Buscombe, said, we shall not return to some of the matters on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 153 agreed to.
	Clause 154 agreed to.
	Clause 155 [Special duty in relation to television multiplexes]:

Lord Avebury: moved Amendment No. 133:
	Page 142, line 39, at end insert "and that there is sufficient remaining capacity for at least two local digital services in every locality"

Lord Avebury: Clause 155 concerns the reservation of spectrum for digital terrestrial television. Clause 241 makes provision for the possible introduction of digital local television services. That builds on the experience of analogue local and community television services, set up as a result of legislative changes introduced in the Broadcasting Act 1996. There are 21 local and community television services licensed by the Independent Television Commission.
	As we know, it is the Government's intention eventually to switch off analogue television services and move to a digital-only terrestrial television environment. The future of local and community television therefore depends on future access to digital local television spectrum. Although Clause 241 provides an enabling mechanism for the licensing of digital local television services, it does not guarantee that they will have the parts of the spectrum that they need.
	The Government are said to be considering three re-planning scenarios for the future conversion of all terrestrial television services to digital-only transmission. Under the most radical of those scenarios, there would be insufficient spectrum for any significant development of digital local television, and existing local and community television services would be obliged to switch off for ever. The spectrum savings resulting from radical re-planning would be transferred to non-broadcast use.
	Under the two other re-planning scenarios—I am sure that the Minister will correct me if I have got it wrong—there would be spectrum remaining for development after the needs of existing national services had been met. That could be utilised for a tier of local and community television services throughout the UK, although there might be other competing demands that would have to be taken into consideration.
	I shall give an example. Channel M in Manchester, which has operated on a four-year restricted service licence since February 2000, offers local programming to a potential audience of 600,000 adults and has its own dedicated production team, as well as contributions from the students at the University of Salford's international media centre. That is exactly the kind of innovative venture that Ofcom should encourage under Clause 3, which calls for a wide range of TV and radio services, appealing to a variety of tastes and interests. A local service such as Channel M is a fine example of that. Assuming that the channel's licence is renewed in February 2004, will investors be ready to put in the capital that may be needed, if the station may have to close down in 2010 because there is nowhere for it to be re-housed in the spectrum?
	The amendment would guarantee a commitment within the spectrum re-planning process to ensure that sufficient spare capacity is reserved for at least two local digital television services in every locality, before spectrum is re-assigned to non-broadcast use. Digital local television would bring an innovative addition to the range and diversity of television services on offer, but, to ensure its development, it is essential that there is a commitment by the Government to adequate digital terrestrial television spectrum. I beg to move.

Baroness Howe of Idlicote: I support the amendment. It is clear that there is demand from the consumer and the citizen for local television and radio. I see from yesterday's Hansard that, once the Bill becomes law, a new tier of access radio stations will be considered. Clearly, the Government are reacting favourably to the demand for local radio and television.
	I shall not repeat what the noble Lord, Lord Avebury, said. We have all been well briefed by community media on that point. However, I hope that the Minister will consider reassuring us that the needs of that group of people and of the citizens who want local radio and television will be satisfied.

Baroness Blackstone: Clause 155 is part of the mechanism in the Bill that will ensure universal access to public service channels on all main platforms and secure that digital multiplex capacity is made available for qualifying television broadcast services. The specific part played by this clause is to ensure that when Ofcom reserves frequencies for television broadcasting, it includes appropriate terms and spectrum licences to ensure that there is sufficient capacity for digital multiplexes to carry qualifying services, which are the public service channels.
	I should like to stress that, while we recognise the value of local television, there is and will be a wide range of services, some of them purely commercial and without any public service remit or character. It will be for Ofcom to determine, within the framework of its statutory duties, what spectrum should be available for those different types of services.
	Of course we fully support local television and radio, and we support its expansion. That is why the existing regulators are working on spectrum planning options that will identify spectrum that is suitable for local and regional services. I understand that some possibilities have already been identified by the planning groups. The work is not yet finished and it will have to take account of international negotiations on the use of spectrum.
	Because of the uncertainty, it is not possible at this stage to be confident that there will be sufficient spectrum available for two local services in every locality, which is what is being sought by the amendment. Furthermore, coverage of television multiplexes tends not to be neatly tailored to single localities. We think that the practical implementation of such a provision would raise many complex technical issues.
	However, I can assure the noble Lord, Lord Avebury, and the noble Baroness, Lady Howe, that we fully support local television and of course we wish it well. However, even with the increased spectrum efficiency offered by digital technology, I have to say that the amendment raises certain practical difficulties.
	I hope that, in the light of my explanation, the noble Lord, Lord Avebury, will feel able to withdraw the amendment.

Lord Avebury: I am not terribly happy with the response of the noble Baroness because we have received no assurance that these services will be able to continue after the switchover to digital in 2010. As I explained when introducing the amendment, people will not invest capital in the development of new local services if they cannot see a time horizon of more than seven years. It would be totally unreasonable to expect investors to put in large sums of money, given that their existence will be threatened at such a short time in the future.
	The noble Baroness said that some frequencies have been identified which may be suitable for these purposes. I wish that she could be a little more forthcoming both on the nature of the investigation of the frequencies that has already taken place and on the discussions being held between the existing regulator and the community services providers, on whose behalf these amendments have been moved.
	I do not think that we shall be able to deal with this matter easily in Committee; it must be covered in discussions with the industry. In the hope that we shall make further progress between now and Report stage so that the industry can be given at least some of the reassurances it has sought, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 155 agreed to.
	Clause 156 [Special duty in relation to television multiplexes]:
	[Amendments Nos. 134, 134A and 134B not moved.]
	Clause 156 agreed to.
	Schedule 5 [Procedure for grants of recognised spectrum access]:
	[Amendments Nos. 134C to 134E not moved.]
	Schedule 5 agreed to.
	Clause 157 agreed to.
	Clause 158 [Charges in respect of grants of recognised spectrum access]:
	[Amendments Nos. 135 and 136 not moved.]
	Clause 158 agreed to.
	Clauses 159 and 160 agreed to.
	Clause 161 [Limitations on authorised spectrum use]:
	[Amendments Nos. 136A to 136F not moved.]
	Clause 161 agreed to.
	Clauses 162 and 163 agreed to.
	Clause 164 [Bidding for wireless telegraphy licences]:

Lord Avebury: moved Amendment No. 137:
	Page 149, leave out lines 23 to 29 and insert—
	"(ab) require that amount to be expressed in terms of a single payment but shall give the applicant the choice of the making of annual payments;"

Lord Avebury: Amendments Nos. 137 and 138 deal with the manner in which payment is made for wireless telegraphy licences under the 1998 Act. As drafted, Clause 164 would allow Ofcom to specify that payment is made as a single lump sum, as a series of instalments over time, as a combination of the two, or in any of those ways at the applicant's choice. In the 3G auction, the option was given of a series of payments, but at an interest rate set so high that it was not taken up.
	If up-front payments are required, that clearly would give an advantage to the major companies with cash, which may not be compliant either with the existing Licensing Directive 97/13/EC, Article 10(3) of which requires licensing to be "non-discriminatory", or Article 9(1) of the Framework Directive, which uses the same language.
	Single payments also undervalue future years when compared with current usage, because of discounting. Even if there was a zero interest rate, that would be the case since a bidder would place a greater value on income in the near future. Such arrangements do not, therefore, achieve the stated objective of,
	"securing the optimal use of the spectrum",
	as required both by the Bill and the new directives. Annual payments would go some way towards correcting that.
	Amendment No. 138 would put an obligation on Ofcom to set a rebate when services start. That will deter speculators who are not going to provide any service, but who are intending to sell the frequencies if their bids are successful. While speculators might have a theoretical contribution to make in taking risks on future spectrum value, based on falling equipment costs and improvements in technology, that must be balanced against the need to use the spectrum immediately to achieve Ofcom's other objectives as laid down in Clause 3. In the extreme case, spectrum could be passed on and on, never to be used.
	Professor Cave—I have already pointed out that his words are holy writ on these matters—has argued that paying for the spectrum is sufficient incentive to use it. But the investment needed might not make use as profitable as resale, even though use would attract consumer surplus or consumer benefit. The operator is not interested in consumer surplus, and that is why we believe that there is a need to redress the balance with a further rebate. I beg to move.

Lord McIntosh of Haringey: Both of the proposals set out here are things that Ofcom may well want to do. Certainly I can see the circumstances in which they would be appropriate. Auctions are held in which spectrum trading situations arise and where a series of annual payments would be appropriate as opposed to a single up-front lump sum scheme. Certainly there are circumstances where it would be desirable to find some kind of incentive to prevent speculation rather than trading, which I think is the legitimate point that the noble Lord, Lord Avebury, is seeking to make here. There is a power to do that, of course—Section 1(3)(c)of the Wireless Telegraphy Act 1998 gives the power for the Secretary of State, and now for Ofcom, to make refunds following an auction. But I really do not think it is a good idea to make it mandatory.
	Ofcom will have the experience of conducting these auctions; it will have to judge on which occasions it should demand all upfront payment or annual payments and whether it needs to protect against speculation by providing for a refund. It has all the powers—it does not need a restriction which would make it a duty in all circumstances.

Lord Avebury: The question between us is whether these stipulations should be de rigeur or an option for Ofcom. The noble Lord has asserted that Ofcom should be given this freedom without any indication of his reasoning for that conclusion. I cannot imagine any circumstances in which Ofcom might have a legitimate reason for demanding the whole of the payment upfront instead of allowing the person concerned the choice of making annual payments. Similarly, I cannot think of any circumstances in which it would not be a good idea to encourage the use of the spectrum by providing for a rebate as part of the normal process. But as I am obviously not going to get a more thorough explanation of the reasoning behind these provisions at this stage, I shall hope that perhaps we can discuss the matter behind the scenes or even that the noble Lord may write to me in due course.

Lord McIntosh of Haringey: I would be delighted to discuss this with the noble Lord, Lord Avebury, or write to him about it. The flexibility that I am talking about allows for a more precise discrimination between the value of different bids, because these other items can be taken into account. But I am not at all against the noble Lord's arguments.

Lord Avebury: It may well be that the use of some practical illustrations will clarify the matter. I am very happy to accept the noble Lord's undertaking, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 138 not moved.]
	Clause 164 agreed to.
	Clause 165 [Spectrum trading]:
	[Amendments Nos. 138A to 138D not moved.]

Baroness Wilcox: moved Amendment No. 139:
	Page 151, line 31, at end insert—
	"( ) In authorising the transfer of rights and obligations under a wireless telegraphy licence or grant of recognised spectrum access under this section, OFCOM shall have regard to the impact of such a transfer on music provision."

Baroness Wilcox: This amendment seeks to include a provision at the end of subsection (3) of Clause 165 in order for Ofcom to consider the impact of a spectrum transfer on music provision.
	The Joint Scrutiny Committee assessed that the capacity of Ofcom and the Government to cope with the real risks associated with spectrum trading—which the Government themselves identified—will depend upon the regulations made by Ofcom as spectrum trading is gradually phased in.
	In theory, the expanding radio environment should increase innovation and diversity because there should be more stations reaching new and different audiences. However, in practice, music creators are deeply concerned that the Government's proposed regulatory regime will put less than a handful of players in control of access to our radio communications networks, with centralised playlists limiting musical diversity. Music creators are concerned at the propensity of radio operators to walk away from licence obligations relating to music programming when ownership is transferred.
	Therefore, the amendment is designed to ensure that the impact of spectrum trading on music diversity is specifically assessed by Ofcom as the current general criteria offer no guarantee that this will be the case. Unless this is put on the face of the Bill, the regulator will not have a defined responsibility to consider the consequences of these changes on music provision. I beg to move.

Baroness Warnock: I strongly support the amendment because I believe that there is a lack of overt protection for diversity of music in the Bill. Sometimes it is easy to overlook the fact that when independent local radio began, there was an enormous difference between one station and another and people were very proud of the fact that they had their own taste in music and their own performers. It was very much a local matter.
	Things have changed greatly, I know, in the past 30 years, but there still is and should remain a sort of residual respect for the quite surprising difference in music tastes in different local radio areas, not just between Northern Ireland and Newcastle but between Birmingham and Wolverhampton—things that one might not expect. This diversity, along with the employment of local musicians, which we shall come on to later, need to be protected on the face of the Bill. There is very little in it about radio and very little about music, so I support the amendment strongly.

Viscount Falkland: This is clearly a probing amendment, and we share many of the views expressed by the noble Baroness, Lady Wilcox. It would clearly be wrong if a digital spectrum trade allowed a particular digital radio broadcaster to dominate the relevant market in a way that allowed him—or it—to compete unfairly. In the event that this is likely to occur, one would expect Ofcom to require clearance or consent prior to a proposed trade.
	Authorisation by Ofcom would, one hopes, be needed in order to prevent any particular worrying trade from taking place. Distortions of the market can take place, as has already been said. The music industry has been worried about a large radio broadcaster arriving at a position where it would dominate the market and have a disproportionate amount of influence on the spectrum. However, these are interesting issues and one looks forward to the Minister clarifying the situation and, I hope, allaying some of our concerns.

Lord Gordon of Strathblane: It may well be that the music industry would love there to be a single dominant provider. In that way, you have to lobby only one person to ensure airplay for your product. That, of course, existed with BBC Radio 1.
	The great advantage of the number of radio stations we have in this country is that in their own self-interest, they try to cater for musical tastes that are particular to the area. I do not know enough about the difference between Birmingham and Wolverhampton to know whether there is a difference. I have a horrible feeling that nowadays, with programmes such as "Big Brother" and "Pop Idol" being virtually universal, tastes have become somewhat homogenised. But nearly 30 years ago, when I started Radio Clyde, we managed to exploit local tastes which nobody, including the BBC, could exploit. I refer to people like Billy Connolly, who, of course, went on to somewhat greater things and is where I think I should be this evening—in Seville, to watch Celtic tomorrow.

Lord McIntosh of Haringey: There is no accounting for taste.
	The Committee will forgive me if I do not repeat the arguments about the benefits of spectrum trading, nor those about the degree of regulation and the dangers of excessive regulation holding back the development of a market in spectrum to the detriment of everybody—communications providers, consumers and all of us.
	Amendment No. 139 is a very attractive piece of special pleading—much more so than some of the special pleading that I have heard over the past few hours, without being too specific about that. I very much share the enthusiasm for music expressed by Members of the Committee, although when the noble Baroness, Lady Warnock, speaks about tastes in music, I remember that some years ago she allowed herself to undertake testimonial advertising for Classic FM. As a devotee of Radio 3, I was strongly resistant to that at the time. However, I have come round to her point of view to an extent, particularly when there is so much of what is called "world music" on Radio 3 in the evenings, to the detriment of proper classical music. However, that is the end of that bit of special pleading.
	Music provision, of course, is only one of the factors that must be taken into account when Ofcom is making decisions about spectrum trading. If we singled out music, we would be in all sorts of dangers. It would also be unnecessary, because Clause 3 already sets out the context within which Ofcom will exercise its powers, including on trading. That specifically involves securing a wide range of high quality broadcast services, which includes music as well as non-music content.
	The Committee will remember that when we refer to national radio licences, of which there is a scarcity, one condition is that one channel should be non-pop music. That is a negative condition, but it is a helpful one for securing diversity, and it is what allowed Classic FM to gain one of the three licences when it first started, to the great benefit of many of us.
	I am very sympathetic to the idea of diversity and quality, but it would be undesirable to put music into the Bill at this place. Radio communications embrace a whole range of uses for which music is not appropriate, such as business radio used by taxi firms. We do not want to distort trading by mentioning music provision explicitly, when there is such good protection in Clause 3.

Baroness Wilcox: I personally welcome our Deputy Chairman, the noble Countess, Lady Mar, back to her place after her long illness. It is lovely to see her here.
	I was very grateful for the support of the noble Baroness, Lady Warnock, who described radio stations that I remember so well. The noble Viscount, Lord Falkland, also supported the amendment, although he identified it as a probing amendment.
	I listened carefully to the Minister's comments, and was interested in his rendition of a negative condition. I agree with him, as I remember how it has worked in practice. He will know that I am not very good at special pleading, because I am a rampant free trader, and it is unusual for me to stand up and plead cause for a particular area.
	I cannot see that we shall get any further on this matter, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury: moved Amendment No. 140:
	Page 151, line 31, at end insert—
	"( ) OFCOM shall require that the transfer from a service or content provider of rights and obligations under any wireless telegraphy licence (or grant of recognised spectrum access), has the approval of OFCOM in advance and that OFCOM will consider other parties and the provision of public services in their decision."

Lord Avebury: We are concerned, as is the industry body called Spectrum, that when spectrum is traded, the original rights and especially the obligations attached to the grant of RSA may not be transferred to the new licensee. Therefore, we should like Ofcom to have a duty to preserve those rights in any transfer. We would go further than that and say that Ofcom should have a duty to approve all transfers made under the clause.
	Subsection (3)(c) and (e) contains provisions allowing Ofcom to make regulations requiring its approval and consent to a transfer of a wireless telegraphy licence or grant of RSA, and to direct that a transfer be made only subject to any conditions that it may see fit to impose. We want to go further than that and say that, in every case, the transfer must be approved in advance by Ofcom. In doing so, it would have to consider existing users, third party licence holders and the provision of public services.
	Leaving matters entirely to a free market in spectrum, without those safeguards, would be likely to concentrate spectrum in the hands of licence holders who can profit the most from it, to the detriment of the interests of third parties, existing users and public services. Even if services are maintained, trading will put upward pressure on consumer prices, because the cost of spectrum has to be recovered ultimately from the end-user. That may not mean that spectrum trading is not useful, but that if we have any sense, we should build extra safeguards into the Bill, which could be relaxed in a few years' time if experience showed that they were not needed. I beg to move.

Lord McIntosh of Haringey: Again, I shall spare the Committee my general remarks on the desirability of spectrum trading and the necessity for a certain degree of regulation. A spectrum market, like any other market, will require a regulatory framework to operate effectively and fairly, prevent distortions of competition, minimise harmful interference and ensure compliance with international obligations.
	The balance between market forces and regulation will change over time, so the Bill gives Ofcom a wide measure of discretion in how to introduce and regulate spectrum trading. An essential element of the regulatory regime is Ofcom's power to require that spectrum transfers should take place only with its approval. The noble Lord, Lord Avebury, correctly identified that power in subsection (3)(c). However, that power needs to be exercised with a degree of flexibility if it is not to act as a drag on the development of a secondary market in spectrum. Such a secondary market would not necessarily be wrong; it could lead to improvement and freeing up underused spectrum, which would benefit consumers.
	Amendments Nos. 140 and 141 would require Ofcom to clear certain spectrum transactions in advance and, in doing so, to consider other parties and the provision of public services. Amendment No. 141 specifies the relevant parties. That would be too inflexible. Spectrum transfers will be of many different types and on many different scales. There is a world of difference between a change of ownership of a taxi firm and the realignment of a national communications network. The degree of regulation will need to be appropriate to the size and characteristics of the people involved.
	There is a concern that spectrum trading might lead to undesirable outcomes. That is why we need regulation. However, the sorts of cases that could be mentioned, such as a mobile telephone network withdrawing from a significant part of the country and thereby reducing competition, are unlikely. It would be too inflexible and burdensome to make prior approval mandatory in all cases. I appreciate that the amendment is limited to disposals of spectrum by service or content providers, and I applaud that caution, but those terms are not defined. Even assuming that they relate only to public telecommunications networks and broadcasters, the amendment would be disproportionate.
	The matter of prior approval is better left for Ofcom to judge within the framework of the duties that it has. I am sorry that the noble Lord, Lord Currie, has left us, as I look for a metaphorical pat on the back whenever I say that. Surely, it is Ofcom that is making the regulations in the clause and, within the overall framework of its duties, the body will understand perfectly well the concerns expressed, perfectly legitimately, by the noble Lord, Lord Avebury. I hope that he will leave it to Ofcom, rather than impose an additional restriction.

Lord Avebury: The noble Lord gave the example of a mobile telephone network withdrawing from a rural area. He said that it would be unlikely to happen in practice and to introduce this kind of requirement would be to reduce the flexibility that Ofcom needs if it is to carry out its functions properly.
	Clause 3 acts as a backstop to ensure that some of the points in the amendments would have to be considered by Ofcom in deciding whether to make use of the regulatory powers that it already has. The noble Lord pointed to subsections (3)(c) and (3)(e). It would be useful if we could have some greater knowledge of whether Ofcom does indeed think that these powers are adequate or whether it would prefer the kind of formula that we have suggested in the amendment.
	We feel that, notwithstanding any protection that may exist for the public service broadcasting requirements and the rights of third parties, there remains the residual area of concern that the trading process will lead to an upward pressure on consumer prices because, as I have said, in every trade an increase in price has to be passed on to someone, and that is the end user.
	However, I am sure that we shall not reach a solution to this problem this evening. We need to discuss it further with those outside the House who are advising us. So, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 140A to 141A not moved.]
	Clause 165 agreed to.
	Clauses 166 to 172 agreed to.
	Clause 173 [Amount of penalty under s. 172]:

Baroness Buscombe: moved Amendment No. 142:
	Page 160, line 12, at end insert—
	"and should be appropriate and proportionate to the contravention in respect of which it is imposed and the size of the entity on which it is imposed."

Baroness Buscombe: This amendment seeks to ensure that any penalty imposed by Ofcom for a contravention in respect of any provisions or limitations of a general multiplex licence is appropriate and proportionate to the extent to which the licence has been breached and the size of the body on which it is imposed.
	As the Bill stands, the penalty may be determined,
	"as OFCOM think fit".
	There is no requirement that the penalty imposed should reflect the extent to which the licence has been contravened. Without qualification, this provision would allow Ofcom to impose a fine that could be totally disproportionate to the actual contravention of the general multiplex licence. The only limitations placed on Ofcom, regardless of the contravention, is the maximum amount of fine that it can compel a body to pay—being £250,000 or 5 per cent of a company's relevant growth revenue. The clause fails to address the impact such a provision would have on small companies, for which a hugely disproportionate fine could be critical.
	The amendment would ensure that not only would any penalty imposed be proportionate to the licence breach, but, additionally, that fines imposed by Ofcom would be enforced in a consistent manner, taking account of the nature of the contravention. I beg to move.

Lord McIntosh of Haringey: I fully sympathise with the thinking behind the amendment. But I can assure the noble Baroness that the principle of proportionality which is embedded in the Bill—it is one of the essential features of Ofcom as a regulator—is universal and covers penalties as well. Under Clause 3, Ofcom is required, in carrying out its functions, to observe both the principle of proportionality and any other regulatory best practice. That covers Clause 173.
	The noble Baroness has raised an additional, perfectly valid point; namely, that any penalty should be proportionate not only to the scale of the offence but also to the size and resources of the offender. That is exactly what Clause 173 does. It allows for a maximum to be either £250,000 or 5 per cent of turnover. That is a limitation, not an extension. It is an extreme case. I cannot imagine many cases where there would be a temptation to impose a penalty that was more than 5 per cent of turnover. But the point here is that we are recognising the size of the entity as a relevant consideration.
	Following a recommendation of the Joint Committee on Human Rights, we have included a provision in Clause 385 which requires Ofcom to prepare and publish a statement of the guidelines that it proposes to follow and to which it must have regard in determining the amount of penalties that it imposes. I hope that the noble Baroness, if she has heard what I have just said about Clause 385, will recognise that that is a valuable principle. Were Ofcom to impose a penalty that was unreasonable or which was in contravention of its general duties or the principles set out in Clause 385, that could be challenged by way of judicial review.
	I would add finally that similar powers under the Broadcasting Act exercised by the Independent Television Commission have not given rise to any problems of which we are aware. I believe that the amendment, however well meaning, is unnecessary.

Baroness Buscombe: I thank the Minister for his response. I absolutely accept what he says in terms of where we might find assurance, confidence and guarantees in other parts of the Bill.
	I feel that this is one instance where, notwithstanding the fact that we should be adding to the wording of the Bill, the amendment would add clarity and reassurance. However, I accept what the Minister says and am grateful for his assurances. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 173 agreed to.
	Clauses 174 to 177 agreed to.
	Schedule 6 agreed to.
	Clauses 178 and 179 agreed to.

Lord Thomson of Monifieth: moved Amendment No. 142A:
	After Clause 179, insert the following new clause—
	"PAYMENT ARRANGEMENTS FOR TV LICENCES UNDER PART 2
	Nothing in this Part shall be interpreted as applying to the payment arrangements for a TV licence fee in lieu of installation of a television receiver, as set out in section 356."

Lord Thomson of Monifieth: This amendment stands in the names of my noble friends Lord McNally and Lord Falkland. It relates to problems regarding the enforcement of payment of the television licence fee. Many Members of the Committee will have received strong representations on the matter from the Citizens Advice Bureau. It is the policy of my party to support the main thrust of those representations.
	To sum up the CAB's proposals, they indicate that in contemporary circumstances the present arrangements, which eventually make the non-payment of a licence fee a criminal offence, should be softened and changed so that, instead, it becomes an offence for the civil courts; and that at the same time we should seek to update the law in line with social and technological change.
	By way of preface, I should say that the present arrangements relating to the broadcasting licence fee date back a very long time—in fact, to the days when the BBC was the only broadcasting organisation—and they have not changed a great deal since that time, despite the advent of new television channels. Now, in a world of 300 television channels, these arrangements require a serious review. Personally, I am not at all sure what is the final answer. The matter will require very serious consideration when the BBC charter comes up for review in 2006.
	I noticed that at one stage the Secretary of State made a remark about the BBC licence fee. She said about,
	"it being totally improbable that such a splendid arrangement should in any way come to an end".
	I think that she was being unduly optimistic. There will certainly be a very fierce debate about the best methods of financing the vital role played by the BBC in our public service broadcasting system. Meanwhile, we must deal with the present situation.
	Not many years ago, enforcement of the television licence fee resulted in a substantial number of people going to prison. There has been a softening of that approach. The notes from the BBC indicate that, in 2002, the Home Office's provisional figures suggested that only 14 people were imprisoned for non-payment of the licence fee. That raises another significant issue. I am bound to say—we have all had representations from the BBC about this—that the BBC, conscious of the sensitivity of the issue in a multi-channel age, very properly makes vigorous efforts to provide easier methods to pay the television licence fee. It provides a whole range of options to make it easier to pay the licence fee, including "Cash Easy Entry" and "Monthly Cash Plan" by means of direct debits and stamps from the Post Office.
	More than 95 per cent of people pay. Those who pay resent those who do not pay and get away with it. That is human nature. The present arrangements which keep the matter a criminal offence deserve a serious review. The evidence from the Citizens Advice Bureau sets out some fairly harrowing cases of how the arrangements work out in practice for some people, perhaps especially single mothers and so on, who are in financial difficulties and find themselves being hauled before the court.
	The Citizens Advice Bureau argued in its report TV Sinners that,
	"summons and prosecutions in the Magistrates Courts are wholly inappropriate methods of licence fee enforcement; the effect is to criminalise people for failing to pay a bill for installation of a television—hardly an offence that harms others—and to bring them into the criminal prosecution process, which for many people can be a profoundly intimidating experience. Invariably having any sort of criminal record—registered with the Criminal Records Bureau"—
	especially in these days of the "all-inclusive databanks"—
	"has a negative effect on employment prospects, social inclusion and ability to get credit".
	I hope that, in their opposition, the Government will give a sympathetic ear to the suggestion that these arrangements should at least be softened and made more gentle.
	In the totality of the system in this country for parking fees and all kinds of fines and penalties, there are much more serious matters than the non-payment of a licence fee if one is in serious financial difficulties. A sense of proportion is required. The situation was understandable when the BBC was the dominant figure in our broadcasting landscape. However, those circumstances have changed greatly. The Government would be wise in looking to the future and the review of the charter to look at a radically different approach to the financing of the BBC, rather than this form of poll tax, which in a world of 300 channels becomes increasingly difficult to defend. When it creates cases of hardship it unnecessarily brings the BBC into some disrepute. I beg to move.

Baroness Whitaker: I support Amendments Nos. 309A, 309B, 309C and 309D for all the reasons given by the noble Lord. In view of the hour I shall say no more.

Baroness Howe of Idlicote: I shall also be relatively brief. It is highly desirable that the BBC should do its best to collect the revenue from those who do not pay their licence fee. However, I go back, probably about 20 years, to when I chaired a committee for NACRO which looked at fines on those who had not paid the licence fee. The fines were strongly levied against women because it was women who came to the door. Those women immediately went before the court on a criminal charge.
	The time has come to change the law and to change the offence to a civil offence. I certainly hope that there will not be many defaulters. Nevertheless, if there are, it should be under that kind of procedure. I hope very much that the Government will give attention to this very serious point.

Lord Lipsey: I am moved, as I am sure the Committee has been, by the cases of hardship that we have heard about. On the other hand, we should look at the other side of the coin. There are those who do not want to pay the licence fee. Although most of us fall into that category, there are some who take the matter a step further and do not pay although they perfectly well could.
	The licence fee is an absolutely stinking, lousy tax. No one has ever doubted that. It is a poll tax. Unfortunately, however, no one has yet found a better way to finance the BBC. However, if we reach a situation where there is more widespread evasion of the licence fee, the arrangement will simply crumble and the option of keeping it will simply go. I hope that we will have a balanced approach to these matters. I cannot say that 14 prosecutions a year puts the fear of God into me, but I do not know each individual case.
	Although there should be a balanced approach which takes account of the hardship that can be caused by payment, at the same time there is a need to keep the integrity of the tax and to do justice to those who go off and struggle very hard. On the Davies committee I calculated that it could take a low-paid worker a week of his working year to pay the licence fee. Many people struggle to do so. Let their efforts not be eroded by our making it too easy for the minority who simply choose not to pay.

Baroness Blackstone: The Auld report concluded that full decriminalisation of TV licence enforcement was not a straightforward option. It would mean that people would no longer risk a penalty as a consequence of using a television without a licence. Instead, detection would result only in the threat of county court proceedings to recover the cost of the licence.
	There would therefore be no incentive to obtain a licence ahead of contact from the enforcement agency. So I very much agree with what my noble friend Lord Lipsey has just said. The Auld report therefore recommended that the use of a television without a licence should remain a criminal offence, but that it should be dealt with in the first instance by fixed penalty notice, discounted for prompt purchase of the licence and payment of penalty, and subject to the defendant's right to dispute guilt in the courts. The Home Office has been carrying forward work on that recommendation and, in consultation with the BBC, is exploring a number of options for dealing with TV licence evasion, including that of a fixed penalty notice. The aim is to put an options paper to Ministers in the summer. Of course, the Government share the aim of diverting people from the criminal justice system and of lessening the burden on the courts. However, it is essential that any new arrangements are really effective.
	I note the provision in new subsection (2)(c) in Amendment No. 309D for regulations to waive the requirement to pay the licence fee in cases of hardship. No matter how hardship was defined for those purposes, such an exemption would effectively result in means testing as a requirement of paying the licence fee. Free or concessionary television licences are already available, as I am sure the noble Lord, Lord Thomson of Monifieth, is aware, to about 4 million households, many of whom are on low incomes. However, means-testing concessions would be expensive to administer and would be resented by those who marginally failed to qualify.
	To allow the courts to waive the requirement to pay in individual cases would discriminate against the many people on low incomes who pay their licence. It would also compound the cost of decriminalisation to the BBC, which would incur the cost of pursuing evaders through the courts with no certainty of recovering the licence fee, let alone the costs.
	The Government are anxious to ensure that the television licence fee is as easy as possible for people, especially those on low incomes, to pay, and a range of instalment options is available. Those include the cash easy-entry scheme, under which payments are made first in weekly and then in fortnightly instalments, and the savings stamp scheme. As the noble Lord, Lord Thomson, is aware, the longer-term arrangements for funding the BBC will need to be considered in detail as part of charter review. We shall consider all the funding options and review the concessionary, easy payment and enforcement arrangements in the light of our conclusions.
	The amendments are also flawed. Amendments Nos. 142A and 309D are based on the assumption that the Wireless Telegraphy Act 1949 will continue to provide the framework for the television licensing system. However, the Bill repeals all the television licensing provisions of the 1949 Act and introduces new provisions in their place.
	Clause 359 also gives the BBC or Ofcom the power, with a warrant issued by a magistrate, to enter and search premises to check for unlicensed use of a television receiver. The powers conferred on Ofcom under a warrant to enter and search premises are exercisable in relation to an actual or suspected contravention of a condition of a television licence relating to interference with wireless telegraphy.
	TV reception equipment, such as aerial amplifiers, has been known to malfunction and cause much interference to safety of life and other communications. So it is essential that Ofcom has the necessary powers to deal with interference from such sources. Those powers exist under the 1949 Act, and are re-enacted here with additional safeguards. So to remove Clause 359 would make proof of unlicensed use of televisions and investigation of interference more difficult. That is just another technical reason why the Government must resist the amendments. I therefore very much hope that the noble Lord, Lord Thomson, will withdraw his amendment.

Lord Thomson of Monifieth: I am grateful to the Minister for the tone with which she replied to the amendments and the new clause. We shall of course want to study carefully what she said. I take her point about the imperfections in the amendments. The paper that we have received from the BBC, for example, points out the anomalies in relation to the view that we have taken on the operation of the Wireless Telegraphy Act 1949. It tried to console us—it did not console me much—by stating that the penalty for licence fee evasion, instead of being at level 5 on the standard scale, will remain at a fine not exceeding level 3, which is currently £1,000.
	There will need to be a serious review of a fundamental character about how the BBC is to be funded in a multi-channel age. I have previously canvassed the purely personal view that, as the BBC is one of the great national institutions of this country, it should be given an entirely separate form of direct funding—perhaps comparable to the Civil List, I do not know. But I do know this. I am bound to say to noble Lords on all sides of the Committee that when we read some of the tales of people who finally get on the wrong side of that law and end up before the courts and, in some cases, even though they are few, in prison for non-payment of the licence fee—

Baroness Blackstone: I am sorry to interrupt the noble Lord, but they do not end up in prison for non-payment of the licence fee. They may, very occasionally, end up in prison for non-payment of their fine—of course, that applies to any unpaid fine.

Lord Thomson of Monifieth: I understand that, but I think that for some of the poor creatures involved, it is a distinction without a difference. I was only going to say that that makes me a little uncomfortable in this House, where so many of us—in my case, for many years—have been relieved of the necessity of paying any licence fee at all, because of the generosity of successive governments in enabling senior citizens to enjoy that privilege. When I think of those who do not enjoy that privilege and what happens to some of them, I feel strongly about the amendment, but for the moment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.
	Schedule 7 agreed to.
	Clauses 180 and 181 agreed to.

Lord Evans of Temple Guiting: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee begin again not before twenty-three minutes to nine.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Patients' Protection Bill [HL]

Baroness Knight of Collingtree: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
	Moved, That the House do now resolve itself into Committee.—(Baroness Knight of Collingtree.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The DEPUTY CHAIRMAN OF COMMITTEES (The Countess of Mar) in the Chair.]
	Clause 1 [Offence]:

Baroness Knight of Collingtree: moved Amendment No. 1:
	Page 1, line 3, leave out "his" and insert "the"

Baroness Knight of Collingtree: This is a manuscript amendment because, as will clearly be seen, I felt that the word "the" would be better at this point than the word "his". It does not really involve any significant changes, but it tidies matters up. I beg to move.

Earl Howe: If my noble friend will allow, I think that we need to return to an issue that we debated at Second Reading, which I am not sure she fully answered at the time.
	The test as to whether a doctor, or anyone else, is guilty of an offence under the clause if he withdraws or withholds sustenance from a patient is whether the purpose of doing so was to hasten or otherwise cause the death of the patient. The question that arises from that is simple: how would it be possible to establish beyond reasonable doubt in most cases that someone who withdrew a feeding tube intended or did not intend to kill the patient?
	When she introduced the Bill, my noble friend made clear that there were circumstances in which the withdrawal of artificial nutrition and hydration would be permissible. She said that it would be permissible if the treatment were burdensome, distressful, or risky. It would not be permissible if, as the Bill says, the person's purpose was to hasten or cause death. I hope that I am right in the way that I have summarised my noble friend's remarks.
	If I am correct in my summary, it seems to me that if a doctor is not to be put in a potentially impossible position there is only one policy that he can reasonably adopt under this Bill; that is, to resist the temptation to withdraw or to withhold sustenance from most, if not all, terminally ill patients under his care. He may be the most caring and conscientious doctor in the world and he may record his reasons meticulously in the patient's records, but how can he ever demonstrate conclusively that the act of withdrawing or withholding sustenance was based on a professional judgment that the alternative would be overly burdensome? He might record this judgment in his notes, but would that be enough to protect him? If withholding sustenance had the effect of hastening the patient's death, how could the doctor show that this was not his purpose, or part of his purpose?
	It seems to me that in many situations involving terminally ill patients decisions that are taken, and the reasons for those decisions, are multi-layered and quite complex. In a case where a doctor has decided for the good of his terminally-ill patient to withdraw sustenance but, in so doing, has hastened the patient's death, the relatives of the patient who take issue with his decision could serve up that doctor to the police on a plate. All of a sudden he could find himself on a criminal charge, with little except his record-keeping to back him up. The aggrieved relatives might well be able to present a case contrary to that of the doctor which a court might find persuasive.
	The noble Baroness, Lady Andrews, alluded to that possibility when she spoke at Second Reading of the acute difficulty in law of separating out the different strands of someone's intentions. It would not be enough for the doctor to say that, while he had foreseen death as a consequence of withholding nutrition, he had not intended death. He would have to do a lot better than that. Indeed, he would often have no certainty at all that he could prove his innocence of the offence, as defined in Clause 1. As the Minister said at Second Reading:
	"Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment . . . would result in the patient's death, the doctor could still be held to have positively intended the patient's death".—[Official Report, 12/3/03; col. 1433.]
	That is the acute difficulty posed by the phraseology of my noble friend's Bill. To put doctors constantly on the backfoot in this way would lead to one thing, and one thing only; namely, defensive medicine. And not just defensive medicine, but bad medicine—in other words, treatment that actually causes distress to patients far beyond any possible benefit that they may gain from it. That is why the noble Baroness, Lady Andrews, was right to say that the shift in the law that the Bill would usher in is of fundamental importance.
	The current test of criminality in the absence of the patient's ascertainable wishes rests on issues which, though not matters of fact, nevertheless are capable of attracting a solid level of agreement among reasonable people; namely, what are the best interests of the patient and the degree to which the burdensomeness of treatment is outweighed, or not, by the patient's prospects for improvement or recovery? Agreement on those matters rests in the first instance on subjective judgment, but, ultimately, on demonstrable facts.
	The same cannot be said when one tries to prove someone's intention. My intention in doing something is a matter of fact, but it is a fact that is, in practice, unverifiable. I can try to adduce evidence to back up my assertion that I acted with this or that intention and sometimes I may succeed, but often the evidence will point in more than one direction. Often, as the Minister indicated, I may not be able to disprove that I had more than one intention when I acted in a certain way. Allowing the test of criminality to rest solely on establishing intention is, I suggest, unsatisfactory in a context of this kind when there is a better course open to us—namely, a test that is patient centred rather than doctor centred.
	The law currently relies on the test of what is in a patient's best interests. But that is also the basis on which the doctor himself takes his clinical decision. To ask, or expect, a doctor to take a decision on the basis of what he intends by his actions is, I suggest, the wrong way to proceed. It would mean that the incompetent but well-meaning doctor, who withdrew or withheld artificial sustenance when he clearly should not have done, could have a defence in law under this Bill. I suggest that that would be highly unsatisfactory.
	Members of the Committee need to hear from my noble friend why she believes that the test of purpose, rather than another more patient-centred test, is the right way to proceed. For the reasons that I have outlined, I am very doubtful that the Bill, phrased in this way, will achieve the result that I believe most of us want to achieve, which is to allow doctors, with proper protocols and safeguards, to make informed clinical decisions on behalf of their terminally ill patients; and be held accountable for those decisions according to well-defined and well-understood rules.

Baroness Knight of Collingtree: I am happy to examine more carefully the question of a legal test to determine what "purpose" means in this context. I have been assured by experienced barristers, one of whom helped with the wording of the Bill, that the word "purpose" is well used and well recognised by juries. "Purpose" is a commonsense word. Like many similar concepts, it is frequently used in criminal law and, I understand, pretty well every day in trials.
	I remind the Committee of the words of Mr Andrew Hunter MP that I quoted previously. When he discovered to his horror that his sick wife was being given neither food nor water in hospital he said that he found it hard to avoid the conclusion that the hospital was deliberately accelerating his wife's death in order to increase the throughput of patients. It is well understood that beds are at a premium; indeed, at this very moment, many people who need hospital care are unable to go into hospital because there is simply not a bed available for them. I certainly understand the dilemma.
	It is perfectly reasonable to ask: what other purpose could there possibly be? If there was a good reason for such actions, I am simply asking by way of my amendments—which I shall deal with shortly—that such reasons be noted. That seems to me to be perfectly fair. Giving sustenance in the case of Mrs Hunter was causing no pain; there was no difficulty about feeding her. Indeed, the contrary was true: she was in terrible difficulty because she was not being fed. It does not take much imagination to recognise that death by starvation, or dying of thirst, must both be a truly ghastly experience. The patient had not asked to be denied food, nor had her husband made such a request.
	If there was another purpose, it should, as my amendment advises, be clearly written down. When a tragedy happens and a patient dies for reasons that I described—for example, through thirst, which is a dreadful way to die—it is not unreasonable for people to complain about that and try to ascertain the purpose behind it. The BMA has recognised that the word "purpose" is perfectly reasonable in this context. It says:
	"Treatment, including artificial nutrition and hydration, may be withdrawn if the purpose of so doing is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she would find acceptable".
	I am bound to say, en passant, that that is an extraordinary statement. In other words, the purpose can easily be to withdraw treatment unless food will make the patient better. I quoted the statement from the BMA to show my noble friend that the word "purpose" is fully understood in this context, and that it is certainly not unreasonable to include it in this way. Furthermore, the word was included on the basis of advice from a barrister. The BMA has not complained about the word. I assure my noble friend that, until his intervention, no concern was expressed to me about whether purpose could properly be established.
	We are not dealing with a case in law. We are trying to get over the terrible difficulty that has arisen since the Bland judgment. We have all heard and read the Law Lords' remarks that it must not be possible to use the impetus of the Bland judgment to justify not giving people the sustenance and liquid that they need. I assure the Committee that I am not trying to be awkward or difficult. I am merely trying to ensure that decent, honourable doctors in hospitals are given clear guidance as to what this Parliament thinks they should do in such cases.

Baroness Finlay of Llandaff: I wish to clarify a point. We seem to be debating Amendment No. 2 as well as Amendment No. 1. I wish to address the issue of purpose. I understood Amendment No. 1 to be a grammatical correction, changing "his" to "the" to establish that the doctor's purpose, not the patient's purpose, was referred to. I wish to comment on purpose, but I do not want to do so now if it is the wrong time.

Baroness Knight of Collingtree: Since we are discussing purpose, the noble Baroness would be perfectly in order to make her remarks now. But we are not discussing Amendment No. 2 at present.

Baroness Finlay of Llandaff: Thank you. I feel quite strongly that we need to look at purpose. At Second Reading, the noble Lord, Lord Carlile, stated that the intention would be clear from the case notes. I contest that. In clinical practice, I do not see clinicians write, "Stop fluids to hasten death", "Stop feeding, let patient die" or even "Stop feeding, patient about to die". Every day I see clinicians write such notes as "Patient dying, take drip down", "Further attempts at insertion of drip futile" or "Nasogastric tube futile".
	I can also envisage an angry relative, as the noble Earl, Lord Howe, mentioned, who has not come to terms with the state of a patient clinically, or a member of staff who wants to be hyper-critical of another for some personal reason, seizing on such an entry and claiming that the clinician acted illegally. I do not see how a clinician could defend himself or herself against an accusation of purpose. There is no way to prove that a patient's death would have been delayed, even by one minute, if a drip had been put up. The case then becomes a lawyer's dream and a clinician's nightmare.
	It is currently against the law to plan to and then to bring forward in time a person's death. Yet the Bill seeks to go beyond that bald statement. It is important to clarify some of the complexities of clinical decisions. This Bill will not and cannot address bad care. Bad care is not given with the express purpose of causing death, even though it will often do so, and good care may postpone death. But it is worth remembering that sometimes good, compassionate carers will accept death and avoid torturing patients with futile interventions.
	Much has been said about the Bland judgment. As a practising clinician, the Bland judgment has forced clinicians to be clearer in their thinking and decision-making over the withdrawing or withholding of intervention. I have seen the situation from both sides. As a clinician, I see the other doctors and nurses around me become clearer in deciding whether they think an intervention will be burdensome with no benefits, whether it will be risky with little benefit, or whether the benefits will outweigh those. But clinical decisions are not absolutes.
	This weekend I have tragically been on the receiving end of care, with someone very close to our family in intensive care. The decision-making was impeccable. Everything was done with the intention to prolong life. That was considered and continued even until it was decided to look to establish whether there was brain death. It was when brain death was established that the intervention ceased. Intervention ceased after the death. The hospital staff did not bring forward the death by one second.
	That is the sort of clinical decision-making that I now see routinely in hospitals. People are clear about not burdening patients. I do not want a return to the days of someone struggling to put a drip on a patient who is clearly dying, making a fourth, fifth or sixth attempt to get a line in when no veins are available. I do not want to see people rushing patients who are clearly dying down to X-ray on trolleys in an attempt to insert a gastrostomy tube because they are frightened that, if they do not do that, someone will accuse them that their purpose was somehow to bring forward the patient's death. My concern is that purpose will not be proven, but it leaves doctors and, to some extent, nurses open to what may well be false accusations. Also it does not address the problems of bad and inadequate care that were so eloquently alluded to—sadly, at some times—during this debate.

Baroness Andrews: The noble Earl expressed the central dilemma of the Bill. At Second Reading, I discussed at some length the dilemma as the Government saw it. I certainly do not want to repeat my remarks. The fact that there have been several different interpretations of the amendment from different sides of the Committee suggests that there is an element of confusion. It might add to uncertainty if the amendment stays where it is.
	I reiterate that I am not sure that by changing "his" to "the" we address the central dilemma of the Bill. As other Committee Members have said, in current law and practice, if something is done to a person in the knowledge that it will cause their death, the law will treat the perpetrator as having intended to cause death. It is clear that death is always a certainty if nutrition and hydration are withdrawn and if that withdrawal is maintained. The person who withdraws or withholds sustenance will almost certainly be treated in law as having intended to cause the patient's death, no matter what other factors have come into play. Committee Members have been saying that very eloquently today. The Bill allows no room for judgment as to the relative benefit to the patient of providing sustenance, nor does it allow room for any consideration of the patient's best interests. So the dilemma is not resolved whether the Bill refers to "his purpose" or "the purpose".
	I appreciate that the noble Baroness was very clear at Second Reading that it was not her aim to prevent the person responsible for the care of the patient from withholding or withdrawing sustenance where it is appropriate or where the patient refuses. I accept that she has a later amendment which aims to clarify that point. However, when we come to that amendment I shall have to express further reservations and make further points. The dilemma that we have been exploring is not resolved by changing "his purpose" to "the purpose". I would counsel against introducing any additional uncertainty into what is a very complex area of medical and legal ethics.

Baroness Knight of Collingtree: I am happy to look at this whole question for Report. I do not want any confusion. I do not think that changing "his" to "the" has increased any doubt or puzzlement on this matter. But if it has, I shall look at it again. I wonder if I may—

Lord Clement-Jones: I think there may be some semi-colour confusion here. The problem is not the use of the word "purpose"; it is that this clause, in a sense, is the wrong way round. The noble Baroness read out the BMA guidance but it seems that she did not take the full sense of it. Basically, the BMA said that treatment, including artificial nutrition and hydration, may be withdrawn if the purpose—it uses the word "purpose" quite rightly—of doing so is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she should would find acceptable.
	It seems to me therefore that the noble Baroness's amendment is drafted entirely the wrong way around. What it would do is criminalise a whole cohort of doctors because it does not take into account that the purpose is to provide a net benefit to the patient. That is the point, but it completely escapes because of the way it is drafted.

Baroness Knight of Collingtree: I can only repeat that I shall certainly look at what has been said with great care before Report stage. While I am on my feet, I am sure that your Lordships will join me in extending sympathy to the noble Baroness, Lady Finlay, for what has clearly been a very traumatic experience during the past day or so. I am sure that we all feel sorrow about that.
	While I will look at the matter again, I should like to add that I do not understand why, if the BMA is quite clear as to what the word "purpose" means, I am not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Knight of Collingtree: moved Amendment No. 2:
	Page 1, line 4, at end insert—
	"( ) If the consultant in charge reaches a decision to withhold or withdraw sustenance, he must record the reasons for so doing in the patient's notes."

Baroness Knight of Collingtree: This amendment is inserted to meet comments at Second Reading and also because the BMA's guidance advises that details should be clearly recorded in the patient's notes; that is, when, why and by whom the decision was made to withhold sustenance. The BMA itself says that. Therefore, surely there can be no objection to my wishing it to be clearly stated in the Bill, because guidance is not law. No aggrieved relative has ever mentioned any written record of why the death decision was made, and advice and guidance, we all know, is very often ignored.
	It is very different indeed to advise that such and such a procedure should be adopted and to ensure that it is so adopted by a law. If it is law, and not just guidance, notes will be carefully made and will be available for scrutiny. I think that should help doctors a great deal. That is probably why they themselves were anxious for it to happen. Furthermore, it would ensure that doctors had thought extra carefully about exactly what they were doing and why. I cannot see why there should be any objection to the amendment which seeks only to do what the BMA desires. I beg to move.

Baroness Finlay of Llandaff: I am most grateful to the noble Baroness, Lady Knight of Collingtree, for her kind words of sympathy. I really appreciate that. I should like to comment on the way decisions are recorded in the patient's notes. It is currently practice that everything one does must be recorded in the case notes. The reality is that doctors recording clinical decisions are not lawyers. However meticulously matters are recorded in the case notes, it may be possible, and often is possible, to misinterpret them or question them, or occasionally really tear them apart because the wording has not been adequate.
	A doctor under a great deal of pressure with a lot of patients taking a lot of clinical decisions will write briefly in the notes and will use short phrases. He or she will not write long hand. Sadly, there are not enough medical secretaries within the NHS for every doctor to have a Dictaphone and be able to dictate in full everything that should go in the records. If that was provided, with a secretary to type the notes up immediately, we might be able to have a full explanation of the thought processes of the doctor. Currently, what is recorded in the notes is the conclusion that the doctor has come to and the key pointers on the way which sign how that decision has been made.
	At present, I am unaware of any guidance which does anything other than say, "You must record everything you do in the case notes as fully as you can". That is drummed into every doctor and every nurse at all stages. They already know that if anything is in doubt, they must sit down and write everything out in full. I am not sure that putting such a direction in the Bill will do anything other than reinforce good practice. It might allow something to be done about the practitioner who does not keep adequate case records generally. But I fear that the way the case records are written and the resources available to doctors will not allow them to defend themselves against a malicious accusation that they have brought forward someone's death.

Lord Clement-Jones: Briefly, I should like to follow the noble Baroness, Lady Finlay, in agreeing with her. I think that this proposal would detract from good practice. Clearly, this is a fairly narrow provision in terms of recording the reasons for decisions in the patient's notes. The GMC guidance is much broader and is followed by clinicians. It states:
	"You must ensure that decisions are properly documented, including the relevant clinical findings; details of discussions with the patient, health care team, or others involved in decision making; details of treatment given with any agreed review dates; and outcomes of treatment . . . You should record the information at the time of, or soon after, the events described. The record should be legible, clear, accurate and unambiguous",
	and so on and so forth. It is a broadly written GMC guideline which is admirable in its content. The provisions in the Bill certainly do not provide that level of detail. In those circumstances, I believe that the guideline is vastly superior to the amendment.

Baroness Park of Monmouth: I am sorry that I was not able to be present at the Second Reading debate, but I have read it very carefully. I speak as a potential victim because I am about to go into hospital.
	I entirely take the points made by the noble Baroness, Lady Finlay, but it seems to me that it is not fully realised by the public that it is possible for you to be starved to death and to have water kept from you. It may be done for perfectly respectable clinical reasons, but you do not expect it.
	I have signed a power of attorney which states that I do not wish to be officiously kept alive. I had in mind that someone would pull out a pipe and I would be dead. That would be fine. But I did not have in mind that I could be perfectly properly and legally left to die of starvation and thirst.
	The public need to be reassured about this but I do not know how that can be done. I understand the difficulty but a very real fear needs to be allayed. I do not know how.

Earl Howe: I have a great deal of sympathy with what the noble Lord, Lord Clement-Jones, said. The essential question with regard to the amendment is what value is added by putting on the face of the Bill a requirement of this kind?
	Perhaps I may ask my noble friend a couple of supplementary questions. First, why does the amendment refer to a consultant when Clause 1(1) refers to any person responsible for the care of a patient? Secondly, what sanctions does my noble friend envisage for any consultant who fails to record his reasons in the way referred to in the amendment? Will it be an offence in its own right?

Lord Brennan: I invite the Committee in considering the Bill not to confuse a semantic analysis of the amendments with the objective behind them. I am sure that my interpretation of the noble Baroness's amendment is correct when I assume that she means that if a doctor—whether it be a consultant or the doctor in charge is a semantic matter for me—the person in charge, takes a decision which plays a substantial part in the death of a patient, the public interest, let alone the interest of the family and those nearest to the deceased, would expect there to be a record of the reasons for that action.
	It is not bureaucratic. It merely seeks to allow there to be invested into the medical procedure at this grave point in a person's existence a medical explanation, in whatever brief form training in medical schools can produce. Although pressures of work may be extreme, I cannot imagine, even in a hospice, that they are so extreme as to prevent a medical person at some stage in the day or so after such an event making an adequate note, albeit brief.
	In my own experience of cases in the past, it is not the existence of notes which leads to malicious complaints and grave dissatisfaction; it is the absence of notes which immediately creates wrongful inferences which may have nothing to do with reality. I cannot imagine any other walk of life where we would not expect a serious decision to be recorded at or near to the time it was made so that others can determine why it was reached. Why should medicine be different when we are talking about a point near death?

The Lord Bishop of Oxford: Would not the noble Lord, Lord Brennan, agree that it is proper medical practice to make notes, as the noble Baroness, Lady Finlay, has pointed out? If notes are not made, the professional ethics, the ethos of the medical profession, have to be looked at. But the GMC has made it quite clear that it is standard practice for notes to be made—sometimes quite simple, straightforward notes if the case is straightforward; sometimes more complex notes if a more complex decision is to be made—and it is difficult to see what the law can add to proper medical ethics and medical practice.
	If the law does come into this, as has already been emphasised by a number of noble Lords, it might create a different kind of environment for the doctors who have to make these very difficult decisions.

Lord St John of Fawsley: There has not been a single substantive reason produced against the amendment. Even the noble Baroness, Lady Finlay, said that it would reinforce best practice. If that is so, what is the possible objection to it? It is not as though the relevant law is being introduced here for the first time; the law is there anyhow. If there is a breach of the law, action will be taken. As I say, the amendment reinforces best practice and reassures people who are anxious. It seems to me that as no substantive objection has been produced, we should support the amendment.

Baroness Andrews: The noble Earl referred to an inconsistency. One of the problems with the amendment is that it refers to "the consultant in charge" while the general offence in the Bill relates to,
	"any person responsible for the care of a patient".
	That description could cover any member of the medical team, including the nursing staff. I have a question for the noble Baroness. Does she intend that any member of the medical team or a consultant only would be required under the Bill to record the reasons for a decision to withhold or withdraw sustenance? Cases could arise where the person responsible for the care of the patient is held to have committed an offence. That person would have to rely for evidence on a record of the reasons for the decision made by another person who might have been less involved in the actual decision. If the amendment assumes that the consultant alone will reach a decision on whether to withhold or withdraw sustenance, the noble Baroness needs to bear in mind that that contradicts the current policy set out in guidance that a doctor should reach that decision in discussion with the healthcare team and those close to the patient. Although I appreciate the intention behind the amendment, there is a problem of inconsistency with it.

Lord Alton of Liverpool: I support the amendment that the noble Baroness, Lady Knight of Collingtree, laid before the Committee. However, I think that she will want to clarify the point that the Minister has just made. The purpose of the amendment is simply to provide a record and not to dilute in any way the consultation that should take place between a consultant and other doctors before reaching the decisions that we are discussing.
	I refer to the background to the amendment. At Second Reading, the right reverend Prelate the Bishop of Oxford mentioned the case of his aunt. He argued strongly then that nothing should be done in the Bill to force a doctor or nurse to go to heroic lengths, if you like, to keep someone alive who would otherwise die. My noble friend Lady Finlay of Llandaff similarly said that we would indulge in defensive medicine—a point made by the noble Earl earlier—if a doctor could not prove his or her reason for having taken a particular course of action. I believe that what the noble Baroness is trying to do in the amendment is to address the legitimate concerns that were raised at Second Reading and to provide some form of protection for a doctor in such circumstances.
	I remind the Committee that during that debate we heard from the noble Lord, Lord Carlile of Berriew, a very eminent QC. He said that no jury would have any difficulty whatever in knowing a doctor's motives provided the relevant records had been kept. The noble Lord, Lord Brennan, also made that point this evening. As the noble Lord, Lord Clement-Jones, said, even though the GMC guidelines require far more detail to be provided, the amendment would simply place on the face of the Bill a requirement to keep a written record. Therefore, it would not be a case of there being no written record as there would be a requirement to keep a written record. There is nothing in the Bill to stop a doctor from going to the lengths laid down in the GMC guidelines.
	None of us wants to see officious legislation directed at doctors or nurses which makes prosecution more probable or likely. None of us wants to see doctors or nurses placed before the courts. I do not believe that the common sense of the Director of Public Prosecutions or of the police in such circumstances would allow that to occur. However, we are well aware that since 1993 and the Bland judgment the very concerns that, in her usual forensic way, the noble Baroness, Lady Park of Monmouth, pointed us towards, have become real and legitimate; that is, one can go into a hospital fearing that one could be starved to death. I hope that the noble Baroness will remain in your Lordships' House for many years to come to make the kind of contributions that we have heard this evening and that the course of care that she is about to undergo will be highly successful. But there is a real and legitimate worry here. It was aired at Second Reading. I believe that the amendment is a real attempt to address those concerns. I hope that it will be supported.

Baroness Knight of Collingtree: I—

Baroness Masham of Ilton: Before the noble Baroness sums up, I should like to add a few words. Since the previous stage of the Bill, the young daughter of a friend of ours died in hospital. She had cancer. In the last stages she could not swallow but her mother sat by her bed and sprayed her mouth with water, keeping her comfortable. In the end, with her friends around her, she died. That is a natural way of dying, and it is very easy for a doctor to write in his notes that the patient stopped eating because she could not swallow. There is no problem there. Sometimes, people try to make things too difficult and complex. It is not necessary to have secretaries to write up the notes. Doctors—if we can read their writing, which sometimes has to be improved—can easily write the simple truth down.
	I agree with the noble Baroness, Lady Park. It is now vital that people have reassurance that patients going into hospital will be protected and not starved. People are worried. I have had hundreds of faxes and letters today with signatures; they have been rather busy next door. We must do something. It is our duty in Parliament to protect people when they feel that they need protection. The House is very good at getting Bills right if they are not quite right. The noble Baroness, Lady Knight, is willing to take everyone's concerns on board, especially the Minister's, so I hope that we can get this Bill right.

Lord Joffe: If one records something in legislation, it is true that it will reinforce what the guidelines and general medical practice lay down. However, it is very dangerous to get into a mode of over-legislation. The guidelines run to 22 pages. It could be argued that most of those guidelines should be part of legislation. It is now normal practice for doctors to record their reasons. Once there is provision for something, there is no need to bring in legislation to confirm what is already happening.

Lord Tombs: We are dealing with a very sensitive area, that of the relationship between the doctor and the seriously ill patient. We have to be very careful how we tread. The debate has taken a course that I regret. I remind Members of the Committee that the Bill is entitled Patients' Protection Bill, not doctors' protection Bill. It is patients with whom we should be concerned today. That does not mean that I want to make life more difficult for the doctors. We have to deal with them, and allow them to do a very difficult and sensitive task.
	It is not at all unusual in life and in criminal law to have to prove that one has acted properly. It happens in driving motor cars, building bridges and all sorts of activities. I see no reason why doctors, with their particularly sensitive operation, should be exempt from that. Doctors have to take the same precautions in showing that they are acting reasonably, professionally and responsibly as other professionals in life today. I make the plea that we think about the vulnerable patient—the passive recipient—and a little less about the professional who has a duty to discharge.

Baroness Knight of Collingtree: I am most grateful for what we have heard. Many comments made by Members of the Committee related clearly to the questions asked. What troubled me most in the speech of the noble Baroness, Lady Finlay, was that she explained that the rule was there but was not adhered to. She said that it was not possible to adhere to it, because there were not enough secretaries. I do not think that I am wrong; I was listening.

Baroness Finlay of Llandaff: It is standard practice to keep medical records. In fact, doctors have been struck off for failing to keep adequate clinical records. The difficulty I have with having the provision on the face of the Bill is that it will become a charter for lawyers to argue over the minutiae of the wording and infer a purpose which is not there.
	Many complaints are made—sadly, the majority are justified. Sometimes malicious complaints are made and people will try to drive a coach and horses through wording, even when someone has recorded what he intended and why he intended it. The written records are made in note form, and are not able to be made in full sentences using legal language which will ensure that there is no loophole anyone can get through. That is the perspective from which I approach this issue.

Baroness Knight of Collingtree: I must strongly disagree with what has been said. I do not believe for one moment that there has been any suggestion that all the notes must be in legalese. We all understand that doctors are not lawyers. None the less, doctors are perfectly capable of placing their reasons for their actions clearly and unequivocally.
	It was true that the noble Baroness, Lady Finlay, told the Committee that, rule or no rule, the process was not being carried out. I will not concern myself with the reason, but it is important to recognise that we are trying to defend and help patients who are increasingly frightened to go into hospital. Let us not debate the matter; that is happening.
	As I said when I moved the amendment, it should be the law that such a statement must be made clearly. I say to my noble friend Lord Howe that dying is an important matter and a consultant will be in charge. A night nurse will not be given charge of the patient—we shall turn to another point about that later.
	I am anxious that the records should be clear, specific and understandable. I cannot believe that this House believes that an amendment such as the one I move is unreasonable. I wish to test the opinion of the Committee.

The Countess of Mar: The Question is that Amendment No. 2 be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". Clear the Bar.
	Division Called.
	Tellers for the "Not-Contents" have not been appointed pursuant to Standing Order 54. A Division therefore cannot take place, and I declare that the "Contents" have it.

Amendment agreed to.

Lord Swinfen: moved Amendment No. 3:
	Page 1, line 8, leave out "or" and insert "and"

Lord Swinfen: Amendment No. 3 is purely to clarify that sustenance means both nutrition and hydration and not one or the other. I beg to move.

On Question, amendment agreed to.

Baroness Knight of Collingtree: moved Amendment No. 4:
	Page 1, line 9, at end insert—
	"(3) No offence shall be committed under subsection (1) if the patient refuses sustenance."

Baroness Knight of Collingtree: I believe most strongly that a doctor has a duty to honour the wishes of every one of his patients. This is not Nazi Germany. Clearly it is an offence to treat a patient against his or her will. I tabled this amendment in response to the fear expressed to me by some doctors that they may be in trouble under the Bill if they withdraw artificial feeding when a patient has said that he did not want a peg in his stomach or a tube in his nose. A doctor would have a perfect defence in those circumstances. He could and should put in his notes relating to the case his clear and entirely reasonable reason for halting artificial feeding.
	I believe that it is extremely important to recognise that we must not treat patients in any way against their will. I am firmly of the opinion that there is no easy way to say that sometimes it would be possible to do that and still be ethical. In a humane and Christian country we cannot contemplate treating patients in a way that they have specifically said they do not want to be treated.
	When I sought to table this amendment I hoped that Members would recall what was said at Second Reading and agree that this was virtually asked for. Where a patient refuses sustenance he should not be forced to have it. That is simply what the amendment says and I hope that it will not be opposed. I beg to move.

Lord Alton of Liverpool: I support the amendment that the noble Baroness, Lady Knight of Collingtree, has just moved.
	At Second Reading, the right reverend Prelate the Bishop of Oxford and my noble friend Lady Finlay of Llandaff spoke of the position of patients who might not want to be given treatment that would keep them alive against their wishes. The noble Baroness, Lady Knight of Collingtree, made clear her intentions at Second Reading, but I am glad that she has moved the amendment. We debated the issue of patient consent or refusal at some length.
	At Second Reading, my noble friend Lady Finlay of Llandaff expressed concern that the Bill failed to acknowledge the position of the patient who considers the possible benefits of the provision of sustenance to be outweighed by the burdens. She said:
	"The competent patient has the right to refuse artificial hydration, even if it may be considered of clinical benefit. Incompetent patients retain that right through a valid advance refusal".—[Official Report, 12/3/03; col. 1419.]
	I agree strongly with what she said. There is no disagreement between us on that point.
	The amendment would clarify the position. If a competent patient refuses sustenance, no offence will be committed under the Bill if the medical staff do not provide sustenance. As I said at Second Reading, a doctor's respect for a competent patient's refusal of sustenance would involve no intention on his part, other than a concern not to commit the tort of battery, of which he would be guilty in imposing sustenance contrary to a competent patient's wishes.
	My noble friend Lady Finlay of Llandaff also noted that the Bill did not cover the provision of oxygen to patients or other essential aspects of patient care, such as turning a patient in order to avoid bedsores. The simple reason for that is that our courts have yet to say that the provision of oxygen or the turning of a patient can be stopped with the purpose of hastening or otherwise causing the death of the patient. To do that would still be illegal in this country. However, since the judgment in the Bland case of 1993, to which reference has been made this evening, the killing of non-dying patients in a persistent vegetative state and in similar conditions by the withdrawal or withholding of sustenance has been legal. Hence, the Bill focuses on sustenance, not on the provision of oxygen or turning in the bed.
	We recognise that the provision of oxygen and the practice of turning patients represent basic care, but sustenance is also a basic human need that should never be withdrawn or withheld, if the purpose in doing so is to hasten or otherwise cause the death of the patient. For those reasons, the amendments would be helpful, and I strongly support them.

Earl Howe: As my noble friend Lady Knight of Collingtree explained, the amendment seeks to address what was identified at Second Reading as a shortcoming in the Bill—namely, that it took no account of the autonomy of the patient or the right of the patient to make a choice about the treatment that he or she receives.
	I welcome the amendment as an improvement to the Bill, at least as regards its broad aims. However, I ask my noble friend whether the amendment, as it stands, is satisfactory. What if the patient who refuses sustenance lacks capacity to take decisions about his treatment? What if the patient is a child? What if he is not sufficiently informed to make a balanced judgment?
	If the amendment were made, doctors would be absolved from trying to exercise their professional judgment in cases in which, currently, they have a duty to do so. It would mean that, if a patient refused sustenance on, perhaps, a single occasion, a doctor would have no duty in law to discuss the pros and cons of that decision with the patient. It would mean that considerations of the mental capacity of the patient were irrelevant.
	I cannot think that my noble friend intends any of that, but she will need to persuade me quite hard that the amendment, in its current form, is right. It seems to leave the law less strong than it is at the moment.

Lord Clement-Jones: I agree strongly with what the noble Earl, Lord Howe, said. It is a complex area, and I know that Amendment No. 5 contains a great deal more correct complexity. That amendment recognises that it is not just a simple matter of whether the patient has refused sustenance. When we come to that debate, that will become a great deal clearer.

Baroness Andrews: I endorse what the noble Earl said. The problem raised by the amendment is that it does not distinguish between patients with the capacity to make a decision and those lacking that capacity. It does not take account of the fact that a patient who lacks capacity may refuse sustenance, even if its provision would be in their best interest. For example, an elderly patient suffering from dementia might refuse food and water because of confusion or a paranoid belief that the food was poisoned. Therefore the amendment would create the perverse result that a doctor could lawfully withdraw sustenance from a patient who refuses it, even if the patient lacked the capacity to make the decision and even, if by doing so, they were to put their lives at risk.
	More significantly, that would represent a weakening of the current law which requires doctors to act in the best interests of patients where they lack capacity to take decisions for themselves. In the light of those remarks, I would ask the noble Baroness to consider seriously her proposed amendment.

Baroness Masham of Ilton: I wish to agree with what the Minister has just said, although I agree with the spirit of the amendment. However, I think that it needs to be amended.

Baroness Knight of Collingtree: The hour is late and we have been discussing the Bill for rather longer than perhaps we thought we were going to. I appreciate that it will have to be postponed. As always, I shall be glad to consider carefully what has been said and to think about a better form of words to adopt in the Bill as we proceed with it to a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 agreed to.

Lord Grocott: Debate on this Private Member's Bill has gone on a little longer than we had anticipated. With the agreement of the Committee, I hope that we shall find time to complete the Committee stage as soon as can be conveniently arranged. In the mean time, however, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Communications Bill

House again in Committee.
	Clause 182 [Reference of disputes to OFCOM]:

Lord Avebury: moved Amendment No. 143:
	Page 167, line 7, at end insert—
	"( ) Paragraph 20A of Schedule 18 shall have effect in respect of disputes referred to OFCOM in respect of behaviour taking place before the commencement of section 182 of this Act."

Lord Avebury: We are concerned that no direct provision has been made in the Bill for dealing with disputes which arise after the Bill has come into effect, but relating to acts done before that date. Clauses 182 onwards go into some detail on disputes and appeals, but there seems to be no reference to procedures for dealing with disputes, in particular about interconnection, relating to events that occurred before the repeal of the Telecommunications (Interconnection) Regulations 1997, but which come to light only after those regulations have been repealed by this Bill.
	Paragraph 20 of Schedule 18 covers the case where a dispute had already been referred to the director general under Regulation 6 of those regulations, but it had not been resolved by the time the revocation of the regulations came into force. Under the present regime, however, many disputes are notified to the director general long after the events to which they relate. It is necessary therefore to provide transitional procedures for disputes submitted to Ofcom after 25th July 2003 when the new regulatory system comes into force, which should include remedies for the parties as if they had been referred to the director general prior to that date.
	The amounts of money involved are significant, as one can see from referrals made in the past to the director general. I shall not weary Members of the Committee with more than one example; that of the case of Flat Rate Internet Access Call Origination (FRIACO) intelligent network charging. Although that dispute has been under investigation for over a year, apparently it was only in February 2003 that the critical information that BT had upgraded its switch decoding capability came to the knowledge of the director general. While the benefit to the rest of the telecoms industry cannot be accurately quantified because of commercial sensitivities, some analysts estimate that they may be repaid almost £15 million as a result of the decision on this case.
	I believe that the Government have indicated that disputes which are not raised until after Ofcom formally assumes its functions will be subject to an "exceptional circumstances" requirement, which seems to be the purpose of Amendment No. 320A. If the Government are not prepared to accept these amendments, they need to spell out exactly what the requirements will be and how the procedure will operate. However, it would be far better to put in place provisions such as we have proposed in Amendments Nos. 143, 321 and 322.
	Amendment No. 321 would ensure that certain existing directions made by Oftel relating to interconnection and carried forward after the Bill comes into force, by virtue of the transitional provisions in the Bill, will be brought within the new significant market power regime to the extent that they deal with issues of SMP and, hence, within the ambit of SMP reviews, which Ofcom is required to carry out under Clause 81.
	Where Oftel is already dealing with a dispute when the Bill comes into force, Paragraph 20(2)(a) of Schedule 18 requires Ofcom to make a determination as if it were the director exercising the powers given to him in the old regulations, the Telecommunications (Interconnection) Regulations 1997. If the director had already given a direction under Regulation 6 of those regulations, Ofcom has the power to give notice under Paragraph 20(4) that it should remain in force. As that regulation is concerned with the resolution of interconnection disputes, Members of the Committee might think that issues of SMP would not arise. However, some of the directions made by Oftel go further than merely resolving interconnection disputes and, in effect, impose new regulation in relation to issues of SMP. That is the case with FRIACO, which I mentioned earlier. We believe that, to the extent that such directions deal with issues of SMP, they should be brought within the new SMP regime under which Ofcom has the power to carry out an analysis of the market. If it concludes that a company is dominant in the market, it decides whether to apply SMP conditions that regulate the behaviour of the company within the market.
	When the relevant SMP conditions come into force, or if Ofcom decides not to apply such conditions, then to the extent that such directions deal with issues relating to SMP, they should cease. This would prevent a series of one-off directions dealing with economic regulation from being maintained outside the SMP process instead of being built into the mainstream regulation and thereafter being subject to the obligation on Ofcom under Clause 81 to be kept under regular review. Without this, such directions could be kept in force indefinitely, with no obligation for review, which plainly would not be appropriate or correct. I beg to move.

Baroness Buscombe: I support the amendments, to which I have added my name. As the noble Lord, Lord Avebury, has already said, they confront the situation that it remains unclear, as the Bill is drafted, whether Ofcom can impose remedies with a retrospective effect, so disputes submitted after 25th July 2003, when the new regulatory regime commences, may not have retrospection. Ofcom will have the power to fine for behaviour but may not be able to give redress to the parties involved. Therefore, our aim is to seek clarification on this issue.
	I should like to use this opportunity to put down a marker on an important issue which we shall debate later in our deliberations. The reason for doing so is that the rights of appeal against decisions made under Part 2 of the Bill, which we are debating now, contrast significantly with those rights of appeal currently afforded by the Bill to broadcasters which find themselves subject to economic regulations under Part 3 of the Bill. Clause 189 introduces full rights of appeal on facts of law to the competition appeals tribunal for decisions, directions, approvals and consents made under Part 2. That is welcome.
	Clause 310(4) in Part 3, however, provides only for appeals to the competition appeals tribunal for a person affected by a decision by Ofcom to exercise its Broadcasting Act powers for a competition purpose. There is a serious concern that this provision for full rights of appeal does not go far enough, exposing broadcasters to decisions of an economic nature which are not taken for a competition purpose, relating, for example, to the pricing or packaging of services but which are not appealable to the CAT. Such decisions could be taken instead, for example, under the Part 1 duties to further the interests of consumers in relevant markets or to secure the availability of a wide range of TV and radio services.
	When the Bill was in Committee in another place, this issue was raised by the shadow Secretary of State for Culture, Media and Sport in the context of the clause currently under discussion. At that time, the Minister indicated that there should be no right of appeal to the CAT on matters of content regulation, a point which was repeated when the relevant clauses in Part 3 came to be debated. We believe that answer misses the point. It may not be desirable public policy for content regulation to be subject to a full appeal process. However, the key point is that decisions of a purely economic nature, such as those on broadcasters' pricing of channels, could be taken by Ofcom under Part 3, for reasons other than a competition purpose, with no full right of appeal to the CAT available. On the other hand, price regulations for mobile telephone operators under Part 2 will be subject to the full rights of appeal to the CAT. That is surely a discrepancy that the Government need to address.
	I shall return to the subject when we reach a later point of the Bill, but it would be interesting to know from the Minister if the Government's thinking on the issue has moved any further since the debates in another place.

Lord McIntosh of Haringey: I should say straightaway to the noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe, that we are very sympathetic to the amendments. Indeed, on 1st May, we tabled our own amendments to Schedule 18 to the same effect; those are Amendments Nos. 320A to 320G on the Marshalled List. I shall speak to those amendments today then move them in their place on a later day—unless we reach that place tonight, of course.
	Officials have been in discussion with a group of telecommunications operators who have raised this matter. Operators were concerned that in the Bill as published there was no provision for Oftel or Ofcom to deal with disputes between operators that arose under the current regime—governed principally by interconnection regulations that are due to be repealed and replaced with the new regime provided by Bill—but which were not referred to the regulator until after repeal of those regulations.
	Operators considered that such disputes could indeed arise, since, for example, Oftel has from time to time set revised levels of charges for interconnection between operators. The necessary adjustments to the operators' payments are typically made by periodic invoices between operators concerned, however. As a result, a breach of these obligations might occur without it coming to the attention of operators, who may be affected by it, until some time afterwards. However, once the old regulations were repealed, it would not be possible, under the Bill as drafted, for the regulator to continue to deal with them. Our amendments ensure that they can still be referred.
	In contrast to Amendments Nos. 322 and 320AA, our amendments also provide that after the end of the transitional period, between the repeal of the old regulations and Ofcom's assumption of its role in the area, a dispute can be referred only when there are exceptional circumstances to justify it. That will ensure that the two regimes are not perpetuated side by side indefinitely, which would lead to unnecessary and undesirable duplication and uncertainty. We still expect Ofcom to accept that there were exceptional circumstances in cases where, for example, it was impossible or unreasonable for an operator to discover that grounds for a dispute existed before the end of a transitional period.
	We are also sympathetic to the aims of Amendment No. 321, which relates to the possibility of giving continued effect for a transitional period to directions given by the director general of telecommunications in resolving the same sort of interconnection dispute before the Bill comes into force, when the directions correspond to SMP conditions under the Bill. Some of those directions contain important regulatory obligations of a type provided for in the new regime.
	It is appropriate to continue the effect of existing obligations until Ofcom has properly reviewed them, but Amendment No. 320D ensures that Ofcom can do this only in appropriate cases, where the obligation is of a type which it would have power to impose under the new regime. Amendment No. 320F ensures that the need for any such continued direction must be reviewed by Ofcom as soon as possible and that the direction should then be either replaced by a condition under the Bill or terminated.
	I can therefore confirm, as the noble Lord, Lord Avebury, suggests, that the amendments bring the directions under the new SMP regime and the directives. We are sympathetic to the general principles involved. Our amendments will ensure that Oftel and Ofcom will be able to continue to deal with these disputes as before, but will be subject to appropriate restraints in the use of its powers to continue the use of existing interconnection determinations.

Lord Avebury: That sounds satisfactory, except for one point; namely, the nature of the exceptional circumstances which have to be satisfied before government Amendment No. 320A comes into play.
	The noble Lord said that the case must be one where it was not possible or reasonable for the complaint to have been raised earlier. That seems to leave scope for a variety of interpretations. Who is to judge whether it was possible or reasonable to have done so?
	We have received three-quarters of a loaf from the Minister and we should be satisfied with that as far as it goes, subject to our consultations with the interests concerned and that they consider that the exceptional circumstances will be such as to allow reasonable complaints to continue.

Lord McIntosh of Haringey: I should like to try to avoid debate when we come to Schedule 18. The answer to that point is that the matter cannot be defined now, but it will be Ofcom which has to be satisfied that the circumstances are exceptional. Indeed, that is in the part of Amendment No. 320A which the noble Lord's Amendment No. 320AA would delete.

Lord Avebury: I am grateful to the noble Lord and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 182 agreed to.
	Clauses 183 to 189 agreed to.
	Schedule 8 agreed to.
	Clauses 190 and 191 agreed to.
	Clause 192 [Decisions of the Tribunal]:
	[Amendment No. 144 not moved.]
	Clause 192 agreed to.
	Clauses 193 and 194 agreed to.
	Clause 195 [Functions of OFCOM in relation to the BBC]:

Viscount Simon: I must advise the Committee that if Amendment No. 144A is agreed to, I cannot call Amendment No. 145 due to pre-emption.

Lord Gordon of Strathblane: moved Amendment No. 144A:
	Page 175, line 21, leave out from "OFCOM" to end of line 25 and insert—
	"(a) to approve or amend all BBC Statements of Programme Policy and to satisfy themselves that the Governors of the BBC have ensured adherence to them;
	(b) to advise the Secretary of State as to whether the BBC should be permitted to introduce new television or radio services, alter the character of existing services or cease to provide them;
	(c) to satisfy themselves that the BBC has followed best practice in its expenditure of funds raised by the licence fee and from other sources;
	(d) to ensure that any cross promotion by the BBC does not unduly distort any market; and
	(e) "

Lord Gordon of Strathblane: It may seem strange that in a very large Bill producing the convergence of regulation of broadcasting and telecommunications the Government should contrive to leave out, at least partially, the principal broadcaster in this country in both radio and television. My amendment is designed to remedy that.
	I hope that Members of the Committee will agree that my amendment is fully consistent with the two great traditions in broadcasting in this country. The first is the promotion of public service broadcasting, which I believe to be a singularly British achievement—first, in the BBC and, perhaps even more remarkably, the achievement of the Independent Broadcasting Authority in translating exactly the same public service requirements to the commercial sector. The only difference between the two sectors is the source of funding. The obligations are identical, almost word for word.
	The second great institution in British broadcasting came about with the creation of buffer authorities—whether it be the BBC governors, or the ITC as it now is, or Ofcom as it will be. While there is ultimate accountability to Parliament, there is at least a buffer between political interference and the broadcaster. That is a supreme achievement which I believe my amendments encourage.
	It should not be necessary for me to say this, but I shall do so in case there is any misapprehension. I in no way regard this amendment as hostile to the BBC—quite the reverse. I think that the BBC would be distinctly stronger were the amendment to be accepted by the Government—not least because, if it is not, and if the current provisions in the Bill regarding the BBC are maintained, I believe that there will be a backlash when it comes to discussing BBC charter renewal. The noble Lord, Lord Thomson of Monifieth, said earlier that he was worried that there would be quite a strong debate about licence fee renewal and charter renewal. I share that worry. I believe that the BBC will be immensely stronger under the umbrella of Ofcom, particularly if it is raining.
	The Bill as drafted gives Ofcom power over the BBC only in so far as permitted by an agreement, yet to be negotiated, between the BBC and Ofcom. That is a recipe for a second run of this whole debate when we come to look at that BBC agreement. In the agreement as drafted there is the potential for conflict between Ofcom and the BBC. It says:
	"The BBC, however, shall take account of guidance given by Ofcom, and any reports issued by Ofcom about public service broadcasting".
	If, say, the BBC takes account of that guidance and then ignores it, that will not do much for Ofcom's reputation.
	I do not imagine that Ofcom will simply take that kind of action lying down. We have the seeds for potential conflict between two great regulatory bodies. Instead, my amendment proposes that, as currently, the BBC will draw up its own statements of programme policy, but that the backstop for ensuring that the BBC governors have satisfied themselves that these are adhered to, lies with Ofcom and not with a Secretary of State. That will give the BBC greater protection than it currently has.
	Some of the DCMS briefing, which some time ago was kindly sent to me, seems to portray the current situation as some great freedom being given to the non-BBC public service broadcasters. There are phrases such as,
	"For this tier greater fairness will be achieved by giving other public service broadcasters a freedom similar to that already enjoyed by the BBC. A system of self-regulation will operate".
	That is slightly disingenuous. Self-regulation, yes, but if in the opinion of Ofcom it does not regulate properly in the public interest in the opinion of Ofcom, there is the backstop of Ofcom. Indeed, the Secretary of State, Tessa Jowell, in speaking to the Westminster Media Forum pointed out—and I shall quote briefly because she puts the matter quite tersely:
	"There is a difference of course: if commercial PSBs are not delivering what they have committed to, Ofcom has the backstop enforcement powers. If the BBC is failing to deliver, those powers are held by the Secretary of State. Two linked arguments are advanced against this: first, that this puts the BBC at risk of political interference, [secondly], for that reason no politician is ever likely to use the backstop powers".
	I would suggest that neither of those are desirable outcomes. So she correctly says,
	"so, how much better to have these powers held by a non-political body like Ofcom".
	But she then goes on—and those who think that under the present system the BBC is protected should pay close attention—to state:
	"But the BBC, unlike the other broadcasters regulated by Ofcom, is spending public money to pursue its goals. It is right that the final decisions should rest with politicians: we are ultimately responsible to parliament and the public for the way that our public institutions deliver against their public purposes".
	Obviously, in extremis, I concede that Ministers have that power. But in Britain the tradition is that Ministers do not interfere in broadcasting. They leave it to the buffer authority. I would suggest that the BBC in its day-to-day management is a lot more secure under Ofcom than in responding to a Secretary of State.
	From time to time some people have said, "You can't really trust Ofcom with something as precious as the BBC". Indeed those words were used in another place. As I said at Second Reading, that does not say much for our attitude to public service broadcasters other than the BBC. But let us be realistic: the board of Ofcom will be appointed by exactly the same people who appoint the governors of the BBC. If the government of the day are capable of appointing good governors of the BBC, they are perfectly capable of appointing a good board of Ofcom. So I do not think that that argument stands up.
	There is also the celebrated dilemma that BBC governors face. They are both the top board of a company and the regulator in the public interest. I genuinely believe that they absolutely do their best and in general succeed tremendously well. But being realistic, it is very easy to convince yourself that you must continue to be popular so that you can do good. That is the siren voice to which politicians listen all the time, so that they do popular things before an election, whether they are right or not, because the main objective is that, "I must be re-elected so that I can do more good".
	It is very easy for the BBC to convince itself that the ratings war is important for it to win, even if, in the process, its public service obligations are watered down. That is dangerous. It needs an external regulator who from time to time gently nudges it and says, "Are you sure that that is what you really want to do?"
	The second requirement, under paragraph (b) of my amendment, is that it should advise the Secretary of State on what new services the BBC should be allowed to introduce, change the character of, or, indeed, cease to provide.
	If my amendment is not passed, what will happen? The Secretary of State will be listening to two bodies: first, his or her officials in the Department for Culture, Media and Sport, who will presumably advise on the BBC, with which, I imagine, they will have a continuing relationship; and, secondly, Ofcom, which will be advising on not quite the entire broadcasting landscape, but on the bit of it that is within its bailiwick—that is, the non-BBC sector. That is highly unsatisfactory. Let us say that DCMS is advising one thing and Ofcom another. Ministers will be directly involved in important broadcasting decisions. In my view, they should not be.
	Paragraph (c) is simply a gentle way to afford some public scrutiny of the BBC's financial practices. It is gentler on the BBC than the National Audit Office route, which, when I heard the Second Reading debate, in some people's view raised the spectre of a director-general being directly accountable to the Secretary of State. I am sure that none of us want that.
	Paragraph (d) is intended to ensure that the BBC's tremendous capacity for cross-promotion—unique in Britain—does not distort the market places in which it is involved. To that extent, it echoes some of the points made by the committee chaired by the noble Lord, Lord Puttnam, in its report.
	I think that the amendment is in the BBC's interest. I hope that those with the interests of the BBC at heart will be able to support it and I commend it to the Committee. I beg to move.

Baroness Buscombe: I shall speak to Amendments Nos. 145 and 148, in my name. I shall not speak to Amendment No. 147. I also support the amendment moved by the noble Lord, Lord Gordon of Strathblane, and the amendments tabled by my noble friend Lord Astor—Amendments Nos. 153, 153A and 153B. I shall also speak briefly to amendments tabled by my noble friend Lord Pearson.
	We have now turned to the subject of BBC governance and regulation. Amendment No. 145 is intended to place the BBC under the remit of Ofcom. First, I reiterate the position that I expressed on Second Reading. The BBC belongs to us all. Its future is the responsibility of us all. However, accountable governance is essential to instil public confidence in that publicly funded corporation.
	The BBC is the dominant broadcaster in the United Kingdom. It has a market share of about 40 per cent; yet it is destined to remain outside the full remit of the industry regulator. Ofcom will have the power to regulate only certain BBC services, as determined by the agreement between the BBC and the Secretary of State.
	Our amendment inserts a reference to the BBC charter in Clause 195(1), bringing the BBC under the umbrella of Ofcom. As currently drafted, the Bill presents a glaring anomaly. The BBC is not subject to the same level of external scrutiny as any other public service broadcaster. The largest and most powerful broadcaster will effectively be exempt from external regulation of its public service responsibility—the purpose for which the corporation was established.
	The Bill creates a three-tier broadcasting structure to facilitate regulation by the new Office of Communications. The first tier incorporates basic requirements and standards applicable to broadcasters generally. Tier 2 incorporates specific requirements that will be applicable to all public service broadcasters, including the BBC. Such requirements will be assessed objectively by Ofcom. Tier 3 provides a system of self-regulation for public service broadcasters. Under this tier Ofcom is required to consider the extent to which public service broadcasters collectively have fulfilled their public service remit.
	The review of public service broadcasting, as a whole, will include the BBC. However, this is where the disparity in the Government's policy emerges. Each broadcaster will be required to publish an annual statement of programme policy detailing its compliance with its public service obligations. On completion, the statement will be submitted to Ofcom for examination. Ofcom, in turn, will review the extent to which individual broadcasters have satisfied their specific programming responsibilities and then make comments and recommendations. If the broadcasters fail to meet their public service obligations, Ofcom will have the power to act.
	The position of the BBC is quite different. The Government's justification for this anomaly is that a divergence in policy is necessary to protect the distinctive role and constitution of the BBC. Each year the BBC Agreement states that the corporation shall,
	"prepare a statement of programme policy similar to the requirement of the other public service broadcasters".
	The statement sets out the BBC's intended strategy to ensure compliance with its public service responsibilities, yet the drafting of the Bill detailing the requirements imposed upon non-BBC public service broadcasters is inconsistent with the less-stringent drafting of the BBC Agreement.
	Under the Bill, the non-BBC public service broadcasters are required to,
	"take special account of the most recent such reports",
	published by Ofcom to assess compliance of individual statements of programme policy. Yet no such obligation is imposed on the BBC. The corporation is merely required to consider previously published reports.
	It is impossible for Ofcom to assess the compliance of public service broadcasters with regulatory requirements when the BBC is not only outside its remit for consideration but the governors also remain the judge and jury of the corporation's self-determinative regime, with no regulatory external scrutiny or sanctions for third tier responsibilities. The only stipulation on the BBC is that it,
	"shall monitor its performance in the carrying out of the proposals contained in the statement of programme policy".
	Further, and most notably, there are the requirements of Clause 13B of the BBC Agreement. This clause specifies that the backstop powers to lay conditions and require BBC compliance with public service obligations, as perceived by Ofcom, lie with the Secretary of State rather than Ofcom.
	I defer to the honourable Member for South Cambridgeshire, Andrew Lansley, who asserted in another place that this deviation in procedure will lead over time to increasing risks of divergence between the BBC's interpretation of its proper role in the broadcasting ecology and Ofcom's view.
	The amendments to the BBC Agreement were purportedly drafted to reflect the requirement of the legislation for other public broadcasters. Why does this glaring disparity exist between the responsibilities of the BBC and the obligations of other public service broadcasters? Similarly, the position of the BBC governors is discordant—their duties encompass a confluence of two distinct roles, despite the amended agreement. The governors should not also be the corporation's regulators.
	The shadow Secretary of State for the Department for Culture, Media and Sport raised this important issue at the Report stage of the Communications Bill in another place. He said that the governors are in an impossible position. They represent the overall management and control of the BBC, while at the same time they are expected to act as independent adjudicators when complaints are made. This inconsistent approach can lead only to confusion and uncertainty. The public service obligations must be stated with absolute clarity to enable competition authorities to undertake the necessary scrutiny to ensure compliance with fair trade commitments.
	The purpose of the amendment is to "future proof" this Bill, thus facilitating the future incorporation of Ofcom's functions into the Royal Charter. The BBC needs external, independent regulations. Amendment No. 145 paves the way for that to occur. The industry requires a fair system of regulation—a genuinely level playing field that will allow the industry as a whole to thrive and develop in this age of continued convergence.
	Amendment No. 148 would confer on the BBC a duty to provide Ofcom with any information that it may reasonably require for the purposes of carrying out its functions under the agreement referred to in Clause 195(1)(a). The agreement, as amended, will place on the BBC an obligation to supply information to Ofcom as it may reasonably require. That obligation stems from Clause 195, albeit through the agreement. The amendment, therefore, seeks to clarify the nature of the duty on the BBC in specific terms on the face of the Bill rather than elsewhere in the agreement.
	I also support Amendment No. 153, which was tabled by my noble friend Lord Astor. It concerns the annual publication of BBC statements of programme policy. I referred earlier to the tier 3 requirement for licensed public service broadcasters to publish annual statements of programme policy. As the Bill stands, Ofcom has the power to act if the annual statements propose a significant change in programming policy in breach of its public service obligations. However, the BBC is under no formal obligation to produce a statement of programme policy, but it voluntarily published a statement last year. Ofcom possesses a backstop power to sanction licensed public service broadcasters if the content changes substantially from the proposed statement. There is no comparable restriction on the BBC. This clause implements a statutory requirement for provisions in the BBC agreement to reflect the comparable obligation on other public service broadcasters.
	This is not an issue that can be effectively regulated through an internal mechanism such as the governors of the BBC. External regulation of programme policy statements would help to clarify the already ambiguous role of the governors by allowing Ofcom to determine whether the BBC had complied with its public service obligations. That would facilitate uniformity across the public service broadcasting spectrum by ensuring protection both internally and externally, and allowing the BBC to remain at arm's length from the Government.
	I support the amendments of the noble Lord, Lord Gordon of Strathblane. It would be otiose to repeat all that he has said, but we are extremely supportive. As the noble Lord has said, the amendment introduces important elements; for example, it would subject the provision of BBC services to Ofcom's remit by requiring it to advise on BBC television and radio services. We entirely support a number of other issues relating to the amendment. We support the amendments of the noble Viscount, Lord Astor. I have spoken in particular to Amendment No. 153, but we also support the noble Viscount's remaining amendments.
	My remaining concern relates to the amendment tabled in the name of the noble Lord, Lord Pearson. Although we have great sympathy with the principles behind the amendment, there is one concern to which I hope the noble Lord will respond. As we understand it, the amendment would impose on the BBC a level of direct accountability to Parliament. As we see it, the advantage would be a degree of external, non-BBC scrutiny, and a requirement of political impartiality. But we question whether the corporation would then be accountable to Parliament and, therefore, the Government. We want to ensure that that would not happen. It is tremendously important that the BBC remains entirely independent from the Government.

Viscount Astor: I wish to speak to my three amendments, which are grouped with those of the noble Lord, Lord Gordon of Strathblane. I agree with everything that the noble Lord said about his amendments and the general thrust of his comments. I am not sure whether my amendments are an improvement on his, but I think that we are all on the same side. I am grateful for my noble friend's support.
	The purpose of Amendment No. 153 is to give Parliament and the public confidence that there is a proper and effective external scrutiny of the BBC's delivery of its public service remit. Under tier 3 the licensed public service broadcasters—ITV, Channel 4 and Channel 5—are required to produce statements of programme policy each year. Those statements are to form their contract with the viewer and they set out exactly how they intend to meet their responsibilities as public service broadcasters.
	As the Bill is presently drafted, the BBC is required to mirror this obligation via amendments to its agreement. However, there is one major, and to my mind fundamental, difference. The obligations of the licensed broadcasters are to be kept under review by Ofcom. Any significant or material change to their public service remits will involve discussion with Ofcom. We would wish to extend the remit that Ofcom has to the BBC, which is why I propose that the BBC should be subject to statements of programme policy.
	My other two amendments also concern the BBC. I believe that it is much more credible for the BBC to come fully under Ofcom rather than the department. A simple example of that is that the BBC's application for BBC3 was initially rejected by the Secretary of State after, what one might call, a protracted public consultation. The Secretary of State then ordered a review into the BBC on-line. I am neither criticising that decision nor commending it, but I think that decisions like that should be made by Ofcom and not by the Secretary of State. The BBC should be independent and I think that it would be better off if it was independent.
	Amendment No. 153A gives Ofcom a formal role in the approval and scrutiny of new BBC services. It also enables Ofcom to comment on significant changes to long-standing BBC services, such as BBC1 and BBC2. Prior to the new BBC services being granted Ministerial approval, Ofcom would be obliged to report on whether the proposed new service or changes to the existing service would be compatible with the BBC's primary public service role, as set out in the charter and Agreement; whether it would provide a level of service to the public that is proportionate; whether it would be universally accessible and free at the point of use; and whether it would represent value for money for the licence fee payers.
	Finally, Ofcom would have a duty to review, from time to time, the performance of the new or altered BBC services to ensure that they comply with the terms of approval granted by the Secretary of State and also satisfy the objectives of compatibility with public service objectives, a proportionate market impact, value for money and accessibility.
	I do not think that any of the proposals in this group of amendments affect either the role or the independence of the Board of Governors. The Board of Governors has a similar role. We must remember that the board is composed of a distinguished bunch of people. They are fundamentally part-time. They have a role which is certainly enhanced and we are told by the BBC that they are to be given more resources. But they are what one might call a rather high up board of directors looking down on the BBC, if one can use that analogy.
	I do not think it should be their role to deal with some of the technical issues which Ofcom is much better qualified to deal with, particularly when these issues affect other public service broadcasters. We must remember that public service broadcasting is not just the BBC. It is about all those public service broadcasters that have public service broadcasting licences; such as, ITV, Channel 4 and Channel 5.
	The BBC has everything to gain and nothing to lose. I have always been disappointed that it does not want to accept that argument. Equally, I have always been rather disappointed that those of us who promoted the independence of the BBC from government and wanted to make it more answerable to Parliament, have been accused of in some way attacking the BBC. That is certainly not the case. We are trying to strengthen the independence of the BBC and make it more accountable to Parliament—fundamentally, the BBC has not been very accountable to Parliament because there is no proper mechanism—and make it more independent of direct government intervention. That is the purpose of the whole thrust of all these amendments.

Lord Thomson of Monifieth: In view of the time, I shall speak briefly and in a moderate and pragmatic way. I start from what is basically a rather Conservative point of view. The United Kingdom has offered the world many things but, in many ways, it is best regarded for its achievement in creating a public service broadcasting system. As the noble Lord, Lord Gordon of Strathblane, said, it was an even more remarkable British achievement that we were able to build onto a directly-funded public system—the BBC—a commercially funded system that matched the BBC in terms of its public service traditions.
	If I may say so to the Opposition Front Bench, in terms of the government of the day these were always Conservative achievements. The BBC began its life under a Conservative government; the IBA, the independent commercial broadcasting system, was, amidst great controversy, entirely the creation of Conservative governments; when Channel 4 came along, it was established under the distinguished Conservative Home Secretary, Lord Whitelaw. These are great British achievements.
	This major Bill will change the broadcasting and telecommunications landscape of this country. I do not need to tell the Committee that it is a vast Bill with many complications. It seeks to merge five existing regulatory bodies and to deal with all kinds of other matters in relation to the new telecommunications technologies we referred to earlier.
	At the very least it will be a major task for the new Ofcom to establish itself and to do the job laid down for it in the Bill. Effectively, it will need a few years to settle down and to establish itself. Without being derogatory, I believe it will be quite a long time before Ofcom will have the same reputation that, over the years, the BBC has earned for Britain around the world.
	But nothing is static. The BBC has been going through a great deal of change and faces a charter renewal in a few years' time. From a practical and pragmatic point of view, it will be very much in the public interest if Ofcom is given time to settle down to its new duties as set out in the Bill. We should review the role of the BBC in the broadcasting landscape when its charter comes up for renewal in a few years' time. Some of the arguments that have been made today may well enjoy a fresh perspective at that time.
	But at the moment it would do immense damage to the public interest and to Britain's reputation for broadcasting around the world if we were to do what is urged by my very old noble friend—if I may call him that—the noble Lord, Lord Gordon of Strathblane, and by those who have spoken from the Opposition Front Bench. The BBC has sought to recognise the changes that are necessarily taking place—of which the Bill is an expression—and has sought to deal with some of the points made in the very interesting speeches of the noble Baroness, Lady Buscombe.
	I have first hand knowledge of one of the fundamental differences between the two halves of the public broadcasting system in this country—the old "duopoly" as it was called at that time—the IBA and the BBC. The IBA, as a regulatory body, had a real degree of separation from the companies that held the various broadcasting franchises in both television and radio, whereas the BBC has always had the problem of the borderline between its board of governors and its management.
	I should have made my usual declaration of interest at the outset: I have a daughter who is part of the management of the BBC. I am also a pensioner of the IBA so I hope that in the very old-fashioned broadcasting sense I can claim a certain degree of due impartiality on these matters.
	But it is perfectly true that this matter has been a problem for the BBC. Under its current chairman and its present board of governors it is making a very serious attempt to clarify that situation, to give the board of governors breathing space between itself and the management, and to provide the board of governors with a degree of independent service of its own in terms of research material and so on to allow it to undertake its task of dealing with the professional management and the various broadcasters under it.
	I say no more at this time of night, as others will want to speak, other than simply to repeat that there are not so many things in the world that Britain can be absolutely proud of. Our broadcasting system is one of those things. The very foundation stone of it is undoubtedly the BBC, warts and all—goodness knows, it has had plenty of warts over the years—and here we have a major and necessary revolution taking place in the merging of broadcasting and telecommunications in the Bill. Let Ofcom have a reasonable chance of a year or two to get settled down. Let us leave the BBC as it is at the moment until we deal with the various issues that will undoubtedly arise with the renewal of the charter, including what will then be the question of the longer term relationship between the BBC and the rest of the broadcasting and telecommunications landscape in this country.

Lord Pearson of Rannoch: I rise to speak to Amendments Nos. 153C and 153D in my name, which are included in the group we are discussing.
	Amendment No. 153C would require the BBC to establish a committee of the governors to monitor and report annually to Parliament on the BBC's discharge of its public service remit, including particularly the delivery of a news service which is impartial, wide-ranging and fair. Amendment No. 153D would require the BBC to offer each of its governors a full-time personal assistant to be chosen from outside the BBC by the governors personally.
	These two amendments follow on from what I said at Second Reading on 25th March (at cols. 757 to 760 of Hansard) which in turn referred to my debate in your Lordships' House on 11th March 2002. I shall not repeat all that now except to remind the Committee that the noble Lords, Lord Harris of High Cross, Lord Stoddart of Swindon and I, have been sponsoring independent analysis of the BBC's news and news-related coverage of the UK's relationship with the European Union since the elections to the European Parliament in 1999.
	Even making allowance for the facts that bias, like beauty, is often in the eye of the beholder, and that surveys often produce results which satisfy the prejudice of those who commission them, I submit that it is difficult to avoid the two main conclusions we have drawn from the 10 detailed and lengthy reports we have so far commissioned. Those two conclusions are, first, that the BBC's coverage of our relationship with the European Union suffers from a heavy Europhile bias and does not allow any debate as to whether we should be in or out of the European Union and, secondly, that the governors have done nothing to prevent this clear breach of the BBC's Charter, agreement and guidelines.
	I am aware that those conclusions may not be altogether unwelcome to those Members of the Committee who view our membership of the European Union as largely a very good thing, and that for them these amendments may therefore carry something of a health warning. But, as I said at Second Reading, I hope that will not cloud our objective consideration of this problem because a significant strand of British public opinion does favour withdrawal from the European Union even in its present form, let alone from what it may become in the wake of Mr Giscard D'Estaing's proposals for a new constitution. Those who hold that opinion may be right or they may turn out to be wrong. Perhaps that would become clearer if there was an informed public debate about it. But what is clear is that the BBC has a duty to encourage that debate and that it has not done so.
	As I have said, I do not propose to repeat the abundant evidence for that conclusion, some of which I have put on the record at Second Reading and on 11th March last year, and all of which can be found on our think tank's website, www.globalbritain.org. That saves Members of the Committee quite a bit of time.
	There is one new statistical nugget which may help to underline my point. That flagship of the BBC's political coverage, the "Today" programme, featured 403 contributions on EU-related news between 1st September last year and 15th May this year, which was last Thursday. Of those, only two reflected the view that the United Kingdom might be better off outside the European Union.
	Another key feature of the exercise sponsored by my noble friends and I is that we have sent the independent Minotaur reports to the BBC's chairman, and sometimes to the governors as well. So far as we know, the governors have not read them. They certainly never reply or acknowledge receipt of the documents in question. On the other hand, the chairman gives them to the BBC's management, which not surprisingly tells the chairman that they contain nothing to worry about, and he duly relays that message back to us.
	I fear that there can be only two reasons for that. Either the governors do not care about their duty to uphold the BBC's public service remit, which would mean that they were not up to their job, or for some reason they are unable to do so. I have of course spoken to a number of people who have been governors of the BBC, and even to some of the present governors. Their story is always much the same. Some did not realise that they had the duty under the charter to insist that the management fulfil the corporation's public service remit. All said that they suffered from being given far too much paper before meetings, and that the BBC is simply too big and complex for them to focus on that aspect of their responsibilities, which, as other Members of the Committee have mentioned, also contain the very great difficulty of being judge and jury in their own court.
	All of us who have served in a voluntary capacity in such organisations know the problem. We all do other things as well, and so can end up being too much guided by the full-time management. Either we give up the other things that we do, or we end up largely trusting the management, while of course keeping our eyes and ears open for anything going obviously wrong. That is why Amendment No. 153D suggests that each governor should be offered a personal assistant on whom they can rely—a sort of political adviser—so that they can look more thoroughly into the vast empire that they oversee, and depend less on the management for the decisions that they reach.
	I know that the chairman's answer to that may be that he has already set up a new governance and accountability department to report to him and, through him, to advise the governors. I also know about the programme complaints committee, and the governors' programme complaints committee. But the staff of all those departments owe their careers to the management, and so are unlikely to tell the governors that the management is failing in its editorial duty. Besides, the governance and accountability department has been in existence for some 15 months, to no visible effect.
	It is against that background that the amendments have been tabled. I do not know what proportion of the governors the proposed committee of governors should contain; perhaps it should even contain half of them. It should devote its energies to the public service remit. That is, after all, what justifies the licence fee. It is also what should set the BBC apart from all the commercial broadcasters. A large and growing number of people feel that we do not need to pay a licence fee for the BBC to compete with all the sex and violence that we can see on all the other channels. We should pay the licence fee to be informed, educated and entertained, without having to put up with too much downmarket rubbish for that entertainment.
	My noble friend Lady Buscombe worried that the amendment would place too large a duty on the BBC to report to Parliament. However, it is only the committee of the governors that would report to Parliament, for Parliament to judge whether the BBC had met its public service duty. I do not see that a debate in Parliament would give the government of the day any more influence over the BBC than they have today. It would merely give Parliament the right to learn how the BBC was performing its most important duty. It would also remove some of the difficulty that the BBC faces of the governors having to be both judge and jury in the discharge of their several and often contrasting functions.
	I speak as a longstanding admirer of the BBC. Its World Service made a huge contribution to the fall of communism in Europe, and thus to the peace of the planet. The World Service is still a wonderful example of what public service broadcasting should be. But the BBC itself is in trouble. The commercial broadcasters are gathering against it and it is starting to lose the respect of the British people. I trust that these amendments may play a small part in helping to repair that damage before it is too late. I look forward to hearing the views of your Lordships.

Lord Maclennan of Rogart: As the noble Lord used a strand of evidence in support of his case, will he indicate whether he believes that every report by the BBC of the activities of the Crown and members of the Royal Family should be in some way matched by the views of those who believe we should not be living under the monarchy but rather republican?

Lord Pearson of Rannoch: That is a helpful example from the noble Lord. The BBC has given my noble friends and me the example that it cannot discuss our membership of the European Union because none of the main political parties favours that. Yet, the BBC gave substantial coverage to the republican viewpoint in the run-up to the Golden Jubilee. It is true that none of the main political parties favours the republican stance. The BBC also gives a considerable amount of coverage to genetically modified foods and to the legalisation of cannabis. I could go on. None of those subjects is espoused by the main political parties.
	Those are all helpful examples to suggest why the BBC should cover the strand of significant public opinion represented by those who wish to leave the European Union.

Lord Sheldon: The noble Baroness, Lady Buscombe, began by saying that the BBC belongs to us all. The noble Lord, Lord Pearson, called himself an admirer of the BBC. Much of what they said subsequently did not follow in the same vein. The noble Lord, Lord Gordon, said that public service and independent broadcasting had identical aims. I do not see that at all. I see what the noble Baroness, Lady Buscombe, called the "conflict of aims" of the BBC.
	The conflict of aims as I see it is the independent broadcasting system. Independent television deals with whatever aims of public service it claims to make. Its desire and function are to ensure that the independent television operators make money. That is the greatest conflict of interest one can have; ideals of making money on the one hand and ideals without that offsetting requirement on the other. Those are the two major problems I see today.
	The noble Lord, Lord Gordon, said that the BBC would be stronger under Ofcom, but Ofcom is a new institution which does not have the history of 80 years. We see what the BBC has done—it has become the greatest television and broadcasting operator in the world. We are saying that Ofcom, which we have just created, can take its place and do far more things. That is a nonsense and I cannot accept it for one moment. One cannot set up a new body which can overtake the long tradition, enormous advantage and world-wide reputation of the BBC which we are honoured to have.

Baroness Buscombe: I will intervene extremely briefly because of the time. There is no question of our suggesting that Ofcom will take the place of the BBC. That is entirely opposite to what we have been saying. We want to protect the interests and future of the BBC for the benefit of us all.

Lord Sheldon: I understand the noble Baroness's viewpoint, but, according to the noble Viscount, Lord Astor, Ofcom was better qualified to deal with so many of these issues. So better qualified? It has just been set up! What kind of qualification is there in that? The qualification comes from 80 years of being a dedicated contributor to our civilisation.

Viscount Astor: Does the noble Lord realise that Ofcom will be made up of all the current regulators which have been in business a very long time? It will not be a new body with new people.

Lord Sheldon: Of course, it is a new body. New people coming together in a new body is a new body. It will operate differently. Surely the noble Lord can understand that.
	I have always regarded the BBC, together with our Civil Service, as one of the two most successful institutions in our country. We should be immensely proud of it. We have seen the Civil Service decline a little from its previous position because it is getting rather too close to government, but that is another matter. There are some disturbing signs of that.
	The issue before the Committee is the operation of the BBC and the independence of the BBC. That lies at the heart of the BBC. With the governors we have people of distinction managing and running the BBC. The duty of the governors is of enormous importance. I was chairman for 14 years of the Public Accounts Committee and the National Audit Office examined the World Service, which is financed by the Foreign Office. It was right that the National Audit Office should have the ability to audit the accounts and that was fully agreed and accepted.
	The BBC is not a money-making organisation. The governors had the responsibility to undertake the principles and ideals of public service. They are people of great distinction. My noble friend Lord Barnett was a governor; the noble Baroness, Lady Hogg, was a governor; and the noble Lord, Lord Hussey, was a governor. Those are people of distinction. Are they to be pushed aside by the management of the BBC and dismissed so easily? Never! Never! They are people of some standing and they have operated for 80 years to the benefit of us all.
	The efforts of my noble friends Lord Barnett and Lord Hussey saved the BBC. The Prime Minister of the day, Margaret Thatcher, acting in similar ways to those we have heard about this evening, was anxious to end the licence fee system, which again and again she called a compulsory levy with criminal sanctions. But my noble friends Lord Barnett and Lord Hussey were able to deal with that by delay and clever operations and they saved the BBC for the advantage of us all.
	Now we hear that the BBC's statements of policy are to be approved or amended by Ofcom. What are the governors for? The governors provide something far better than anything that you will get in Ofcom. Over the decades we have seen people of the greatest possible standing and I find it difficult to believe that Ofcom will be better qualified than the governors to comment on the operation.
	I consider this poor recognition of the great work carried out by the governors and of the way that for more than 80 years they have provided us, and still provide us, with the finest broadcasting system in the world to the benefit of us all. The BBC has ideals; other television and radio stations may have ideals—although not always—but we understand that they put their financial considerations first. That is reasonable. That is the difference. The BBC does not have such limitations.
	I believe that the BBC is the most important cultural institution in this country. We are honoured and proud to have it. It has operated as a benchmark and it has set standards throughout the broadcasting media. Why do other bodies undertake public service broadcasting? It is because of the existence of the BBC. The BBC sets the standards and others try to maintain some affinity with them. Understandably, some of the broadcasting media resent the existence of a competitor that is not in it for the money but exists to serve, to inform, to enlighten and to entertain those who pay the licence fee.
	Why is it that we do not have in Britain the tawdry television stations that operate in some other countries? Why does there appear to be an attempt to debilitate the BBC? There is rivalry, which is natural—I understand that—but there is less rivalry about standards and ethos. There is not the same kind of rivalry in relation to that. There are those who make their profits from radio and television who may feel constrained when their ethical standards come under the shadow of the BBC.
	The BBC does not fit into the usual pattern of non-governmental organisations. When the Public Accounts Committee examined the World Service of the BBC in 1987, it concluded that the World Service should be examined by the National Audit Office. The World Service is financed largely by the Foreign Office. It was right for the National Audit Office to take responsibility, and it has, to no one's surprise, undertaken the task with efficiency and delicacy. It also concluded that the present arrangements for voluntary examination of the BBC should remain. The 1983 Act enables the National Audit Office to do value for money studies, with the agreement of the BBC and the Minister.

Baroness Buscombe: I must explain to the noble Lord that we will debate the question of whether the BBC should be scrutinised by the National Audit Office in connection with Amendments Nos. 150 and 151.

Lord Sheldon: I shall deal with it then. I am only making some introductory comments. They are important matters. We have discussed matters that are not, perhaps, as important as those that we are discussing now. Interventions are just making things take longer, but I will, of course, give way.

Lord Renton of Mount Harry: I am one of the Conservative broadcasting Ministers about whom the noble Lord, Lord Thomson of Monifieth, was so kind and generous a few moments ago, saying how much Conservative governments over the years had promoted and helped the BBC. It is incorrect for the noble Lord, Lord Sheldon, to say that, as Prime Minister, my noble friend Lady Thatcher wished to do away with the licence fee. Certainly, my noble friend was, at times, doubtful about how the BBC used its money. She did not like how the BBC reported her actions and activities, any more than Lord Wilson did or Mr Blair does. She did not believe in doing away with the licence fee.

Lord Sheldon: There are two views on that. I have a contrary view. The noble Lord can put his view, and I can have mine. It is based on discussions that I have had with people who discussed the matter with the noble Baroness.
	I wish to see the current position maintained. After all, we must examine what has gone wrong. Many other aspects of the press, radio and television have performed badly or could easily be improved. Attention should rightly be concentrated there. The BBC still stands as the one great success in the public service, and that success has been achieved over 80 years. The BBC has retained its eminence during the momentous changes that we have seen throughout that period of the 20th century. We should not risk damaging an organisation that has served us so outstandingly well.

Lord Crickhowell: That speech was ample proof that the Joint Scrutiny Committee was right to warn, in paragraph 379 of our report, that,
	"the relationship between the Communications Bill as enacted and the review of the BBC Charter and Agreement due to begin in 2004 could usefully be clarified. If not, there is a danger that the passage of the Communications Bill could provide an opportunity for an unstructured debate on the review of the BBC Charter which could detract from full consideration of the important matters raised by the Bill itself".
	Rightly or wrongly, the Government chose not to include the future of the BBC generally in the Bill. They limited the Bill to certain specific areas. In its considerations, the Joint Committee wisely did the same. We decided not to have a general review of the position of the BBC and certainly not to endorse whatever the Government might decide about the relationship.
	What is critical about the Bill is that the agreement between the Secretary of State and the BBC, when it comes, should be fitted in alongside the Bill in a way that will work. Also critical is that the charter itself, when it comes to be reviewed, can be fitted in alongside the provisions of the Bill so that the relationships between Ofcom and the governors of the BBC are workable and maintain the undoubted strengths of British broadcasting that have been so eloquently and passionately defended over the past few minutes.
	The noble Lord who spoke from the Liberal Democrat Front Bench in fact misunderstood the purpose of the amendment spoken to by my noble friend on the Front Bench. It incorporates the charter into the Bill to ensure that, when the charter comes to be rewritten, it will relate to this Bill and the provisions will apply to whatever is then put into the charter. I understand the amendment to be a piece of future-proofing. It did not seek to make a judgment about what should happen when we come to charter review. On that, I am pretty confident that passionate debates will take place on charter review. We have had a form of Second Reading preview of those debates over the past few minutes.
	Along with the amendment spoken to by my noble friend on the Front Bench, I wish to speak in particular to the first amendment moved by the noble Lord, Lord Gordon of Strathblane, and to that spoken to by my noble friend Lord Astor. I have to say that the first amendment has serious weaknesses. It suggests that Ofcom should be able to do things that are in fact beyond the powers of Ofcom as they are applied to the other organisations regulated by the Bill. To say that Ofcom should be able to amend and rewrite BBC programme documents is to go rather too far. Although I may be mistaken, I also think it would be a mistake if Ofcom became the body to decide whether the BBC spends its money properly. That, too, probably goes beyond Ofcom's remit.
	I have a great deal more sympathy for the amendment in the name of my noble friend Lord Astor. It deals with matters that are spelt out in great detail in Clause 260 of the Bill as they apply to other bodies that are to be regulated. I believe that my noble friend is seeking to ensure that the relationships between those who produce public sector broadcasting, whether they are the BBC or the other public sector broadcasters, come under similar rules and similar provisions. That is absolutely right and we should ensure that that is done.
	A common misunderstanding often propagated outside is that only the BBC produces public sector broadcasting. We know that that is not true and now, for the first time, we have a detailed definition of public sector broadcasting which applies to the BBC and the others.
	We are not presently dealing with the exact contents of the charter, or even of the agreement. At this point I want to say that the amendments to the agreement produced for Parliament in January seemed to have as many shortcomings as the previous draft amendments that we saw sometime last year. It is clear that what eventually is put into the agreement is of absolutely crucial importance. Indeed, the whole relationship will break down if the agreement is not drafted so that it conforms with the Bill. We should concentrate on ensuring that the Bill is future-proofed, that it can relate effectively to the charter when eventually it is agreed, and—this is of equal importance—that the Government, in negotiating or agreeing the charter with the BBC, should make absolutely certain that it dovetails with the provisions included in this Bill.
	Rather curiously, we have received more information from the BBC about the process of amending the charter than we have had from the Government. Over recent months, we have had more declarations by the BBC of some of the things it will agree to than from the Government. Perhaps one of the key reasons why we should be holding this debate at the present time is not to produce the agreement, not to produce the charter, but to emphasise, in every way we can, that when we come to consider it in due course, we will be judging whether it fits in alongside the Bill and the Bill could be made to work.
	I have had an interesting little correspondence in recent weeks with the chairman of the BBC about the relationship with Ofcom. He was upset because on Second Reading, when I talked about it not always being comfortable to have your elbow nudged, he seemed to think that I was accusing him of not wanting to co-operate with Ofcom. Nothing was further from my thoughts. I entirely accept his assurance that he wants to co-operate in every way possible with Ofcom. But he has now written me a letter in which he concedes that the elbow-nudging process can sometimes be quite uncomfortable. My wife occasionally nudges my elbow in a way that I do not always welcome, but our relationship is extremely happy, I am glad to say.
	It needs to be emphasised that if this whole thing is to work properly, it will work because the BBC, as it is eventually constituted, and Ofcom, as it grows with experience, develop a workable relationship. We are at the beginning of a process. Therefore, we are not talking tonight—I do not believe we can—about trying to reform the entire arrangements with the BBC in this Bill. It would mean rewriting the Bill in a completely fundamental way that I simply do not believe is practical in parliamentary terms at this stage. We will come back to some of these issues later when we debate public sector broadcasting. Tonight we have to concentrate on the relationship between the Bill, the process of charter renewal and the drafting of the new amendment. We must make sure that the Bill is future-proofed. I support the amendment of my noble friend on the Front Bench for that reason, because I believe it helps that process, as does the amendment tabled by my noble friend Lord Astor.

Baroness Howe of Idlicote: There are two points on which we can all agree. First, everybody who has spoken tonight wants to do their very best for the BBC. Everybody has said, and I believe them, that they are very proud of it; it has been the creator—the inventor—of public service broadcasting, and we should never forget that, whatever we decide to do.
	Secondly, this group of amendments raises the question of the extent of Ofcom's power or duty to oversee the BBC's performance at level 3 of the tier. In that process, it will, as we have heard from the noble Lord, Lord Crickhowell, pre-empt the whole process of charter review and renewal. I also think it will second-guess the governors' responsibilities before that has been discussed. It is also going well beyond the specific intrusions on BBC independence that are implicit in the work of the content board which, in my view, will do no more—and perhaps rather less—than is already done by the BSC.
	However, as we heard from the noble Lord, Lord Crickhowell, the pre-legislative scrutiny committee has considered all that very carefully. It pointed—indeed, I dug out the same paragraph—to the likelihood of an unstructured debate. How right they were, albeit an unstructured debate of very high quality.
	I also believe that the Government, in paragraph 141 of their response to the Scrutiny Committee, gave a sufficient answer to that point. If one considers that paragraph, one sees that as early as next year there will be a wide-ranging review of the BBC which will,
	"encompass an extensive process of public consultation and discussion, including debate in both Houses of Parliament. The Government will look to OFCOM to make a full contribution to the review".
	In my judgment, that process, conducted on top of and at the end of the many debates that we have had on the Bill, both inside and outside Parliament, surely should more than ensure that the BBC, with all its workings and plans, will have been scrutinised almost into the ground. I ask myself—and Members of the Committee—how much further we need to go in piling regulatory watchdog on regulatory watchdog.
	I am reminded forcefully of the message that was so well spelt out by my noble friend Lady O'Neill, ironically enough on the BBC, in her distinguished Reith lectures last year. Your Lordships will remember that her central message was about trust—the extent to which we trust or, more probably today, do not trust each other. The apposite reference is to,
	"our public culture, which is so often credulous about its own standards and suspicious of everyone else's".
	I would urge Members of the Committee to accept the Government's advice in their response to the Scrutiny Committee. Surely, that is far better than loading on my noble friend Lord Currie a huge range of superficially reassuring statutory duties, which he will have to tackle almost before he gets his feet under the table and which, frankly, he has not a snowball's chance of finalising before we are all engaged in the charter renewal debate.
	I have one last ironic thought, which will not surprise Members of the Committee. Even with all this welter of legislation, in which we impose new regulatory burdens on the industry and each other, how far can we have any confidence that the citizen—the consumer—will have any clear idea about how to seek and secure redress in respect of the grievances that really concern him or her? Those may include the unfairness or infringement of privacy that can occur and the affront to taste and decency.

Lord Fowler: I confess to some unease about the clauses and amendments that have been proposed. I have a great deal of sympathy with the remarks of the noble Lord, Lord Thomson of Monifieth, from the Liberal Democrat Front Bench, and with those of the noble Baroness, Lady Howe. This is after all meant to be a deregulatory Bill; indeed, some would take the process of deregulation even further. I believe that that would be foolish, but there are some who believe that should happen. In the case of the BBC, however, we are all in danger of becoming enthusiastic regulators all over again.
	One amendment brings the BBC back, lock stock and barrel, under Ofcom; another brings a whole range of things into Ofcom. As the noble Baroness, Lady Howe, pointed out, there comes a time when one wonders whether the regulation will get in the way of running the organisation altogether. That is a familiar argument outside the broadcasting area—that regulation is strangling small business, for example. Before accepting the case, we must be very clear that it has been made, and I am afraid that I am not convinced.
	We know that the BBC will come under Ofcom for general requirements of programme standards, and standards of taste, decency and fairness. We know that Ofcom will be able to review the commercial activities of the BBC, tiers 1 and 2. The main regulatory areas that will remain in the sole hands of the governors are political impartiality and the so-called tier 3 powers connected to the public service remit of the BBC. Personally, I believe that that is exactly where they should remain.
	The other day, the chairman of the BBC argued that the two foundation stones of the BBC, inherited from the 1920s, were the independent funding via the licence fee and the system of independent control founded on the board of governors. It is my belief that this system has served the country rather well. It has self-evidently established itself at home and has won an international reputation.
	My point is that we are not dealing here with an unsuccessful organisation. We are dealing with a notably successful one, which has established itself and proved itself. Any political party with any sense should recognise that that is the case. In spite of what was said by the noble Lord, Lord Thomson, I think that it is rather unlike the National Health Service. I am glad to say that no party claims sole credit for the creation and development of the BBC—and long may that remain the case. I hope that it remains the product of an all-party, bipartisan policy.
	Of course, we know that politicians tend to unite in complaining about the BBC's "bias" and "unfairness". It could be Alastair Campbell. It could be my noble friend Lord Tebbit. It could be—indeed it just has been—my noble friend Lord Pearson on the Bench behind me. Complaints about BBC coverage presently range from the Iraq war to the local elections. As a former chairman of the Conservative Party, I am sure that I sent a few complaints to the BBC myself at the time. They were few, because I took the rather eccentric view for a party chairman that complaints cut very few daisies with the public, who are quite capable of judging for themselves whether John Humphrys had started his first interruption before the Minister had uttered two or three words in reply, or whether a particular programme was unfair or not. "Trust the people" is not altogether a bad principle.
	Having started work at The Times under the editorship of William Haley—himself a distinguished director-general of the BBC, who also sought balance—I know how difficult it is to achieve that to everyone's satisfaction. It is next to impossible to achieve balance all the time, and mistakes occur.
	I make three points about the BBC. First, we keep being told about what the public feel, but all public opinion surveys indicate that the BBC is the most trusted and authoritative broadcaster. As an old journalist, I regret to tell the Committee that it is trusted substantially more than newspapers.
	Secondly, there is no question that the BBC aims for balance. Achieving balance is its editorial purpose. That makes it unlike a number of media organisations such as newspapers, which campaign on this or that issue—on Europe, for example. My noble friend talks about the BBC, but it is not exactly unknown for newspapers to campaign on the subject of Europe, and no one says that they are aiming for balance. But the BBC does that.
	My third point is an organisational one. If balance and absence of bias are what one wants to achieve, it is better to place that responsibility with a board of governors who are nearer to the organisation itself and who will have most influence. The governors are part directors and part regulators. That not only makes them different, it makes them effective. They have that dual role, and it serves us well.
	I would argue that it is in the public interest to have a strong board of governors carrying out the two roles, knowing that the buck stops with them on the governance of the BBC rather than transferring that role to a general industry regulator. Of course, if this House, the public or politicians wish to return to this debate, then the licence renewal process will provide the opportunity. But I would certainly not take the kind of steps advocated in these amendments at the present time.

Baroness Buscombe: Before the noble Lord sits down, what is his opinion with regard to Amendment No. 145, which simply future-proofs the Bill to facilitate the future incorporation of Ofcom's functions into the Royal Charter?

Lord Fowler: That sounds a perfectly sensible proposal. However, I would have the debate on the future of the BBC at the same time as that on the renewal of its licence. I do not see much point in having the debate before that.

Lord Puttnam: Perhaps I may make a suggestion. We are in something of a jam. I would like to make a suggestion to the Government Front Bench which could solve a significant problem. I do not for one moment disagree with a word that my noble friend Lord Sheldon has said, but the noble Lord, Lord Crickhowell, was quite right in saying that we did predict this. I will not say, "I told you so", but one is tempted. We said,
	"We recommend that the Government in its response to this report set out its initial proposals on the manner in which it envisages review of the BBC's Charter being conducted".
	That was good advice then; it is good advice now. I suggest to the Minister that she accedes to that advice; that the present group of amendments are withdrawn; and that we return on Report. Having got that from the Government, having understood what the map ahead is and having looked at what foxes we are actually shooting, we might have a shorter and more structured debate on Report. Frankly, we could be here for a long time tonight and could eat up the whole of Thursday's session as well.

Lord Williamson of Horton: I am somewhat baffled by these amendments. As Amendment No. 144A in the name of the noble Lord, Lord Gordon of Strathblane, is the first, I will deal primarily with that and with its text in my brief remarks. It seems to me that there are three points. The first is, should Ofcom have regulatory responsibility for the BBC in some areas in order to create a level playing field between the BBC and other broadcasters?
	There has been an underlying current that that is not in the Bill. I understand that that is the underlying purpose of Clause 195, as drafted, and in my view it could succeed in that purpose. That is the first point.
	Secondly, should this be handled by way of an agreement between the BBC and the Secretary of State, as set out in Clause 195(1)? That seems a very reasonable approach since the BBC already has its own dedicated regulator—the board of governors.
	Thirdly, should the Bill include a specific power for Ofcom, as suggested in Amendment No. 144A, and even more drastically in Amendment No. 153, to enter into such matters as possibly amending BBC statements of programme policy. There is a mysterious "(e)" at the end of Amendment No. 144A, which means that it would be the direct function of Ofcom, without any other agreement,
	"to regulate the provisions of the BBC's services and the carrying on by the BBC of other activities".
	That would come under "(e)" on the amendment as drafted, which is quite a wide-ranging power.
	Should we go along that line? My answer to it is quite clearly, "No, we should not go along that line". I know that these amendments have been presented as benevolent—a love-in with the BBC. I recall those spiders which make love and shortly afterwards bite off the head of their partner. So I do not think that we need these amendments since the governors are fully capable and, indeed, the right and responsible body for ensuring that the BBC meets the public interest.
	Finally, it would not surprise me at all if five years from now the public appreciation of the BBC was massively greater than the public appreciation of Ofcom.

The Lord Bishop of Manchester: I had not intended to speak this evening. I hope that Members of the Committee will agree with me when I say that it would be good to hear the Minister respond to the wise points put earlier by the noble Lord, Lord Puttnam.

Lord Phillips of Sudbury: That puts those few of us who are left who want to speak in a difficult position. I rather think that one must say one's piece and then hear the Minister. I shall give a short speech, so fear not.
	The issues in this debate are finely balanced. Like all of the Committee, I am sure, I have thought extremely hard about on which side to come down. The reason that I have come down in favour of rejecting the amendments is that the BBC is more different than some of those who are in favour of them have been willing to admit.
	There are four characteristics, four constitutional features of the BBC that set it completely apart from any other broadcasting institution. First, it is the only one subject to a charter—a charter with detailed conditions the breach of which entitles the Secretary of State of the day to intervene in the BBC's affairs. Secondly, the BBC has governors appointed by the Government. That is a unique characteristic.
	Thirdly, the BBC has made itself answerable to the Select Committee. That is a major, serious and annual investigation of its affairs and the conduct of its policy. Again, that is not true of any other broadcaster. Finally—several Members of the Committee have referred to this—it has only one stakeholder: the public. It has no shareholders. It is answerable to the public interest, in the Reithian sense of the word.
	Taking all that together, I concur wholeheartedly with what my noble friend Lord Thomson, the noble Lord, Lord Fowler, and the noble Baroness, Lady Howe, said, which is: if it ain't broke, don't fix it. By and large, the BBC is not broke. I accept the criticisms that some Members of the Committee have made. No doubt the noble Lord, Lord Pearson of Rannoch, has every reason to feel fed up with the coverage or non-coverage of his particular concern. But that is not a sufficient reason—a number of individual failings do not remotely constitute sufficient reason—to meddle in the governance of an institution that is well-established, stable, creative, uncorrupt and the linch-pin of our whole broadcasting system.
	So, I, too, am with those who say: let the matter be dealt with in the next round of the charter. If the noble Baroness, Lady Blackstone, accepts the suggestion made by the noble Lord, Lord Puttnam, all well and good, but, short of that, I oppose this set of amendments.

Lord Brooke of Sutton Mandeville: This is a large issue; I shall join others in seeking to address it telegraphically.
	The BBC's evolution has been a remarkable achievement. It has gone through vicissitudes, like any other organisation, but the overall results, whether internationally or domestically, are deeply impressive and speak for themselves. The noble Lord, Lord Thomson of Monifieth, spoke of our public broadcasting reputation in the world at large. I have always thought that the two greatest contributions that this country has made to the world were, first, political maturity and, secondly, lyric poetry, which come together in the game of cricket, whose political maturity is demonstrated by the fact that it has laws rather than rules. If I may put the thought of the noble Lord, Lord Thomson, another way, the BBC itself is a good index of that political maturity at work.
	A charter renewal and examination of the licence fee lie ahead of us, as the Scrutiny Committee stated. The case has been made by those speaking in favour of the amendments, that the BBC will be assisted in that process by the changes proposed. I have previously cited CS Lewis in the Chamber as saying that if you hear someone going around doing good to others, you can always tell the others by their hunted look. In citing that, I allude to the claim that the changes will assist the BBC.
	If the BBC is subject to the general changes listed in the amendments—the BBC has been engaged in consultation and making considerable concessions already—it will face the renewal process with an organisation and ambience not of its own choosing, which is not an entirely fair test. I am entirely content for the BBC to be rigorously examined during the charter and licence fee renewal process, but that process is not assisted by churning up the BBC at this juncture.
	I understand the motivation of the noble Lord, Lord Gordon of Strathblane, and my noble friends, and I do not remotely discount it, but I agree with the noble Lord, Lord Phillips of Sudbury, that this issue is finely balanced. Finally, I share the views of the noble Lord, Lord Thomson of Monifieth. If I may play the CS Lewis card again, good will not be done to Ofcom if the young, strapping horse is overloaded too early in its journey.
	I vividly recall seeking to put together what was then the DNH, but is now the DCMS, from six different prior departments and what those first two years were like. I shall be surprised if Ofcom's experience is different. I share the view of my noble friend Lord Crickhowell that the Government's position would be more tenable if they shared with us how the Bill will mesh with the charter renewal in a way that they did not follow in their response to the recommendations of the pre-legislative scrutiny committee. Like my noble friend, I take comfort from the work that the BBC is carrying out in this same regard. My noble friend Lady Buscombe has given the argument a useful shove with her BBC Charter suggestion.

Baroness Blackstone: The debate has been extremely interesting. Different views were expressed from all sides of the Committee; indeed, the expressions of commitment to the BBC, and some of the criticisms of the Bill as it stands, came from all parts of the Chamber.
	In responding to the debate, which was certainly brought alive by the passionate conviction with which my noble friend Lord Sheldon argued his case for the BBC, I shall be strict with myself. I shall simply respond to the amendments. I shall not allow myself to get into wider issues about the history of the BBC, about its contribution to civilisation, or, indeed, issues regarding entertainment, politics, or anything else, over the past 50 or 60 years.
	However, it is important for us to sort out where we stand on this question. I shall take the amendments in turn, but not quite in the order to which they were spoken. It will be helpful for me to begin with Amendment No. 145. The Government resisted the amendment in another place on the basis that the agreement seemed the most appropriate place in which to set out the functions that Ofcom is to have in relation to the BBC. It is the agreement, not the charter, that will contain the substance of the new obligations on the BBC in relation to which Ofcom will have functions. Often, it makes sense to weave the Ofcom's role seamlessly into these substantive provisions. It could be unhelpful and confusing to insert them into a different document.
	I have taken very much to heart the arguments made by the noble Lord, Lord Crickhowell, about the Bill being future proof. I am also interested in the contribution made by my noble friend Lord Puttnam. I have carefully considered the arguments put forward in favour of Amendment No. 145, and I am prepared to accept it in principle. Although I cannot pre-empt the outcome of charter review, the Government agree on reflection that it would not be right to close off the possibility that one outcome might be for Ofcom to have functions conferred upon it through the charter. I hope that that response will help in taking us a little further in the direction that some noble Lords desire.
	I very much welcome the suggestion made by my noble friend Lord Puttnam, but the question is how much detail we can reasonably set out at this stage, and how helpful that would be. We shall obviously be as helpful as we can. However, it may not take us a great deal beyond our response to the pre-legislative scrutiny committee, because the thinking has not yet been completed. Nevertheless, in the context of what I have already said about Amendment No. 145, I shall take away my noble friend's suggestion for consideration to see whether we can take it just a little further.
	I should like to consider further the precise wording of Amendment No. 145. In particular, a more technically correct way of referring to the BBC charter may be appropriate. If that is the case, I will return with a government amendment on Report.
	Amendment No. 148 would place a duty on the BBC to provide any information that Ofcom may reasonably require for the purposes of carrying out its functions relating to the BBC. We already intend to insert a provision into the revised BBC Agreement to deal with that very point. The provision is contained in Clause 13B of the proposed amendments to the agreement, which have been made available to Committee Members. Clause 13B will place on the BBC a general duty to co-operate with Ofcom and to furnish it with any information that it may reasonably require in connection with its functions under that clause. The proposed provision recognises the need for Ofcom to have all the information that it requires for carrying out its functions in relation to the BBC.
	I am not, therefore, persuaded that it is necessary for the proposition to be included in the Bill. I hope that the noble Baroness will accept that. Our general approach is for the BBC's obligations to be imposed by way of the agreement, leaving Clause 195 simply to lay the foundations for Ofcom's own functions, and to address the obligations on the BBC that, in their nature, require legislation.
	On Amendment No. 153, our proposals for amending the BBC Agreement include an obligation on the BBC to prepare and publish annually a statement of programme policy. The relevant proposed clause is Clause 5C. It will require the BBC to consider Ofcom's guidance and reports issued under Clauses 260 and 351 before preparing its statements of programme policy.
	My next remarks are relevant to the amendments of my noble friend Lord Gordon as well as those of the noble Viscount, Lord Astor. As I explained to the House at Second Reading, the basis of our policy in respect of the BBC is that it should stand within the new regulatory regime on terms consistent with the corporation's distinctive role and constitution. That is exactly what was sought by the noble Lords, Lord Fowler, Lord Thomson of Monifieth and Lord Phillips, and the noble Baroness, Lady Howe.
	In particular, we attach the highest importance to preserving the BBC's relationship with Parliament, through the charter and the agreement, and the core responsibilities of the governors for delivery of the corporation's public remit. That approach was clearly enunciated in the White Paper, and we have consistently adhered to it. Nobody can be surprised by the Government's response to this group of amendments today. Amendment No. 153 would subvert that fundamental principle in that it would effectively transfer responsibility for delivery of the BBC's remit from the board of governors to Ofcom. That is not a proposition that the Government could accept.
	Amendment No. 153A seeks to add new provisions to the Bill, bringing the process for approving new BBC services within the statutory framework. Prior to the Secretary of State approving any new BBC service, or changes to an existing service, Ofcom would be required to prepare a report on whether the proposed service or changes satisfied certain objectives. There would also be a duty on Ofcom to review and report periodically on the extent to which new and changed BBC services complied with the relevant approval and the objectives mentioned in the amendment.
	The amendment is, once again, in conflict with the general principle underlying our approach to the regulation of the BBC. The BBC is established by Royal Charter and is not generally regulated by statute. The amendment accepts that it would continue to be the charter and agreement under which the Secretary of State would grant approval for new BBC services or changes to existing ones. But it seeks to regulate the process and to police the outcome to some extent by making direct statutory provision. In our view this would be anomalous and inappropriate and we are not persuaded of the need for it. Again, the noble Lord, Lord Brooke, spoke very perceptively about this.
	I want to reiterate the assurance given by my honourable friend Kim Howells in another place that Ofcom will have an important role in the approval process for new BBC services. My right honourable friend the Secretary of State will formally consult Ofcom on any new BBC service proposals and on any reviews of existing BBC services. Indeed, my right honourable friend has already made a commitment to carry out an independent review of the BBC's new digital services in 2004 and we propose that Ofcom should be fully involved in that.
	In order to make the process for approving new BBC services more transparent, the department introduced administrative guidelines in 2001 which set out the criteria used by the Secretary of State. Some of the detail in the new clause is based on these guidelines. Having regard to all those points, we are not persuaded that any further formal provision is needed to ensure that Ofcom plays an appropriate role in relation to the approval of new BBC services or changes to existing services.
	Amendment No. 153B brings together Amendments Nos. 153 and 153A. I shall not repeat my comments on those amendments. I shall just observe only that Amendment No. 153B goes even further than those amendments in that subsection (5)(b) and (c) would give Ofcom even more intrusive functions than under Amendment No. 153.
	Turning now to the noble Lord, Lord Pearson of Rannoch, I am not going to engage with him on the BBC's coverage of European Union matters. We have had that engagement on a number of previous occasions, but I shall say to the noble Lord that he never gives up.
	Amendment No. 153C seems wholly unnecessary. Under the terms of the BBC's current Royal Charter and agreement, monitoring and reporting to Parliament on the discharge of the corporation's public service remit are already in effect functions of the board of governors as a whole. To be more specific, the charter prescribes it as a function of the governors to satisfy themselves that the corporation's activities are undertaken in accordance with any agreement made with the Secretary of State. The current BBC Agreement sets out the corporation's public service remit, including its obligation to provide comprehensive, authoritative and impartial coverage of news and current affairs. This is reinforced by the requirement in the charter for the governors to approve clear objectives and promises for BBC services and programmes and to monitor how far the corporation has attained such objectives and met its pledges to audiences.
	The BBC is further under an obligation under the charter and agreement to produce an annual report for Parliament and to include in that report, among other things, an account, in reasonable detail, of how far the corporation is meeting its published standards and objectives for the main programme services provided as part of the home services. The requirement relating to news would be encompassed by these provisions.
	Taken together, these requirements seem more than sufficient to meet the concerns that the noble Lord has in mind. We can see no possible advantage in requiring the establishment of a special committee of the governors to undertake a function which is already clearly allocated to the governors as a whole.
	Amendment No. 144A, moved by my noble friend Lord Gordon of Strathblane, essentially tries to set out Ofcom's relationship with the BBC in the Bill rather than in the agreement. As I have already made clear, this conflicts with our basic approach to the BBC which is set out in the corporation's obligations in relation to Ofcom in the agreement, thereby preserving the BBC's special position and accountability to Parliament. I recognise that my noble friend felt that in moving this amendment he was protecting the BBC, but I think every noble Lord who moved an amendment in this group thought that they were protecting the BBC. I am not sure that the BBC would entirely agree with them because I do not believe that it would support the route that some of your Lordships want to go down.
	Amendment No. 153D seeks to make available to each BBC governor a full-time, independent personal assistant—how lucky they are—funded by the BBC but chosen by the governors themselves. Apparently the amendment is intended to promote the effectiveness of the governors by ensuring their access to advice and assistance which is independent of the BBC executive.
	Of course it is essential that the governors have access to independent and informed advice on which to make decisions. Indeed, the BBC recognised this need when it announced last year a number of important reforms to its internal governance arrangements. The intention behind the reforms was to establish a much clearer delineation of the functions of the governors and the executive and to enhance the role of the governors in monitoring performance and regulatory compliance.
	One of the specific changes involved the setting up of a new governance and accountability department, the function of which is to support the governors by providing independent advice and support on compliance, objective setting and accountability. It must be for the BBC governors to determine the nature of the support they need to enable them to carry out their responsibilities properly. They are the people best placed to know what kinds of support would be most useful to them.

Lord Pearson of Rannoch: Surely it is not right to say that the advice provided by the governance and accountability department, which has been established by the chairman, is independent. These people are employed by the BBC; they owe their careers, pensions and so on to Mr Dyke and Mr Damazer and the rest of the top brass of the BBC. They are most unlikely to advise the governors that Mr Dyke and company have not fulfilled their public service remit when their futures are thus in doubt. I am suggesting independent assistants.

Baroness Blackstone: I do not agree with the line of the argument of the noble Lord, Lord Pearson of Rannoch. As a number of noble Lords have said, the governors of the BBC are experienced and independent people who can make up their own minds. They do not need on the face of the Bill a requirement that they should all be provided with a personal assistant. The noble Lord, Lord Ryder, has been quite quiet in the debate but I am sure that he would agree with what I have said.
	The Government are willing to accept Amendment No. 145 in principle. I therefore hope that noble Lords will not press the remaining amendments in the group.

Viscount Astor: I agree with the Minister in regard to the amendment of my noble friend Lord Pearson of Rannoch. I would have supported him if he had brought forward an amendment which required that we should all have a personal assistant, including the governors. Sadly he did not do so.
	I am not entirely surprised that the Minister did not support my Amendments Nos. 153, 153A and 153B. They would take away more powers from the Secretary of State than from the governors, and I have never known a Secretary of State of any party who has wanted his powers removed or diminished in any way.
	It is important that the noble Baroness should take up the suggestion of my noble friend Lord Crickhowell and the noble Lord, Lord Puttnam, because licence renewal will be very complicated. After all, those of us who were involved in the previous debate will know that at that stage there were two BBC television channels and four radio channels. We now have eight core BBC television channels, 11 radio channels and a huge number of commercial services.
	My noble friend Lord Brooke, who was involved in the negotiations over the previous BBC Charter and Agreement—indeed, I steered it through this House on his behalf—said that it will be rigorously examined. But the process is not satisfactory. I am sure that the Government will initiate a debate on the future of the BBC and the agreement and that the noble Lord, Lord Sheldon, and other Members of the Committee will make impassioned speeches. The Government will then go away and produce a charter and agreement. We shall then have a debate to pass it but we will not be able to amend it in any way. In effect, we will be faced with a fait accompli. It would therefore be helpful if the Government could pre-empt that by explaining their thinking before Report stage.
	The noble Baroness made a very constructive response to my noble friend on the Front Bench. For my part, I am grateful for that. I am also grateful for her response to my amendment, although I suspected that she would not agree with the amendments.

Baroness Buscombe: I thank the Minister for her response to Amendment No. 145. As I made clear, this is all about future-proofing the Bill. We consider that that is tremendously important. I am not sure that all Members of the Committee who spoke after me appreciated that we did not intend to knock the BBC but rather to protect it and its interests when considering the outcome of the review of the Royal Charter. I am also grateful for the Minister's response on Amendment No. 148.

Lord Gordon of Strathblane: I was very attracted by the contributions made by the noble Lords, Lord Crickhowell and Lord Puttnam. I believe that many of us seek to avoid having two debates that are totally disassociated from each other—one on charter renewal and one setting up Ofcom. The element of future-proofing which the amendment of the noble Baroness, Lady Buscombe, would provide would help in that regard.
	If the Minister will say as much as she can at Report stage with regard to how the Government will proceed in this matter, many of us will be much happier. I, too, was very impressed by the impassioned pleas of the noble Lord, Lord Sheldon, although I am afraid that I disagreed with them totally. I shall gladly send him the Labour government's White Paper of 1978 which shows that the objectives of public service broadcasting are identical in the commercial and the BBC sector. But, in the meantime, I believe that it is time to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 145 not moved.]

Lord Evans of Temple Guiting: I beg to move that the House be resumed.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at thirteen minutes before eleven o'clock.